Department of Law Master of Laws Master Thesis, 30 hec, Autumn Term 2011 Regulation of Environmental Impact from Marine Tourist Activities A Minor Field Study in Mombasa and Kisite Mpunguti Marine National Parks and Reserves, Kenya Sofia Sandholm Supervisor: Lena Gipperth Examiner: Christina Olsen-Lundh Acknowledgements I would like to take this opportunity to thank all people that have encouraged, guided and inspired me during this study. I would like to give a special thank to my supervisor at the University of Gothenburg, Lena Gipperth, for encouraging me to perform a minor field study in Kenya and for giving me guidance during the process of writing this essay. I would also like to thank the Swedish International Development Cooperation Agency for making this minor field study financially possible. During the minor field study in Kenya, I met many people who assisted, educated and inspired me in various ways. I want to thank all those people. I would like to give a special thank to the personnel at Kenya Wildlife Service in Mombasa and Kisite Mpunguti, especially Arthur Tuda and Richard Lemarkat. I would also like to give a special thank to everyone who has taken time to participate in my interviews. Finally, tack Henrik. i Abstract Mombasa and Kisite Mpunguti marine national parks and reserves KHUHLQDIWHU µ0RPEDVD 0135¶ DQGµ.LVLWH0SXQJXWL0135¶) consist of biodiversity rich ecosystems such as coral reefs and sea grass beds, with high ecological and economical value. Marine tourist activities taking place within these areas are connected with a risk of harming the marine environment. Mombasa MNPR and Kisite Mpunguti MNPR have the objectives of conserving marine biodiversity as well as supporting tourism. In order to properly integrate these objectives, it is important that marine tourist activities are adequately regulated. The purpose of this study is to investigate how marine tourist activities, directly influencing the marine environment in Kisite Mpunguti MNPR and Mombasa MNPR, are regulated. An investigation is made of environmental requirements, in legal rules as well as more informal norms (e.g. codes of conduct), and how these requirements are enforced. A legal investigation has been performed through a judicial dogmatic methodology and empirical findings have been collected through semi-structured interviews during a minor field study in Kenya. The findings of the study illustrate the roles of environmental requirements in legal rules as well as more informal norms in regulating marine tourist activities in Mombasa MNPR and Kisite Mpunguti MNPR. Legal environmental requirements that tourists and tourist activity organizers must comply with during marine tourist activities are primarily identified in provisions prescribing offences under the Wildlife (Conservation and Management) Act and the Environmental Management and Co-ordination Act, 1999. Other legal environmental requirements could also have a role in regulating marine tourist activities, but this appears unclear. It might for example be possible to prescribe legal environmental requirements in licenses or permissions, but it seems uncertain whether this is done in practice. Furthermore, the findings show that it is mainly Kenya Wildlife Service (hereinafter µ.:6¶ RIWKHstudied government agencies, that enforces legal environmental requirements in relation to marine tourist activities taking place in Mombasa MNPR and Kisite Mpunguti MNPR. The enforcement is primarily performed through supervision, education, collaboration with tourist activity organizers, warnings and suspension. KWS appears to enforce environmental requirements in legal rules as well as more informal norms. Some of these environmental requirements are applied by KWS in Mombasa MNPR as well as Kisite Mpunguti MNPR, meanwhile other requirements differ between the areas. The findings also show that, in Mombasa MNPR, environmental requirements in norms of tourist activity organizers have a role in regulating marine tourist activities. Tourist activity organizers as well as KWS seem involved in enforcing these environmental requirements. Finally, the findings illustrate that environmental requirements in different types of norms (legal rules and more informal norms) seem to interact in the regulation of marine tourist activities in Mombasa MNPR and Kisite Mpunguti MNPR. Keywords: Code of conduct, conservation, environmental law, Kenya, Kisite, marine protected area, Mombasa, norm, sociology of law, tourism ii Contents Abstract ................................................................................................................................ i Contents ............................................................................................................................... ii Abbreviations ...................................................................................................................... v 1 Introduction ..................................................................................................................... 1 1.1 Background and Problem ...................................................................................................................... 1 1.2 Purpose and Questions .......................................................................................................................... 4 1.3 Employed Definitions ............................................................................................................................ 5 1.4 Limitations ............................................................................................................................................. 6 1.5 Methodology .......................................................................................................................................... 9 1.5.1 Selection of Subject and Area for the Minor Field Study .............................................................. 9 1.5.2 General Information Sources ......................................................................................................... 9 1.5.3 Legal Investigation ........................................................................................................................ 9 1.5.3.1 General ................................................................................................................................... 9 1.5.3.2 Methodological Challenges and Attempts to Handle These ................................................ 10 1.5.4 Empirical Findings ....................................................................................................................... 12 1.5.4.1 General ................................................................................................................................. 12 1.5.4.2 National Environment Management Authority .................................................................... 13 1.5.4.3 Ministry of Tourism ............................................................................................................. 13 1.5.4.4 Kenya Wildlife Service ........................................................................................................ 14 1.5.4.5 Tourist Activity Organizers .................................................................................................. 14 1.5.4.6 Other Respondents ............................................................................................................... 15 1.5.5 Perspectives on Law in this Essay ............................................................................................... 15 1.6 Critique ................................................................................................................................................ 16 1.7 Disposition ........................................................................................................................................... 16 2 Theories .......................................................................................................................... 18 2.1 Legal Environmental Requirements and Enforcement ........................................................................ 18 2.2 Norms .................................................................................................................................................. 19 3 Basics on Kenyan Law .................................................................................................. 21 3.1 Legal System, Sources of Law and their Hierarchy ............................................................................. 21 3.2 Interpretation of Written Law .............................................................................................................. 21 3.3 Constitution of Kenya .......................................................................................................................... 22 4 Environmental Management and Co-ordination Act ................................................ 23 4.1 Environmental Management and Co-ordination Act ........................................................................... 23 4.1.1 General ......................................................................................................................................... 23 4.1.2 Fundamental Principles ................................................................................................................ 23 4.1.3 Project Report and Environmental Impact Assessment License .................................................. 24 4.1.4 Strategic Environmental Plan ...................................................................................................... 26 4.1.5 Offences Relating to Pollution ..................................................................................................... 27 4.1.6 Improvement Notice and Restoration Order ................................................................................ 28 4.1.7 Additional Orders in Relation to an Offence ............................................................................... 29 4.1.8 Supervision .................................................................................................................................. 29 iii 4.2 Empirical Findings .............................................................................................................................. 30 4.2.1 Project Report and Environmental Impact Assessment License .................................................. 30 4.2.2 Strategic Environmental Plan ...................................................................................................... 31 4.2.3 Enforcement ................................................................................................................................. 31 5 Tourist Industry Licensing Act and Tourism Act ...................................................... 32 5.1 Tourist Industry Licensing Act ............................................................................................................. 32 5.1.1 General ......................................................................................................................................... 32 5.1.2 Tourism License .......................................................................................................................... 32 5.1.3 Supervision .................................................................................................................................. 33 5.2 Tourism Act ......................................................................................................................................... 34 5.2.1 General ......................................................................................................................................... 34 5.2.2 Fundamental Principles ................................................................................................................ 34 5.2.3 Tourism License .......................................................................................................................... 35 5.2.4 Offence Relating to Pollution ...................................................................................................... 35 5.2.5 Supervision .................................................................................................................................. 36 5.3 Empirical Findings .............................................................................................................................. 36 5.3.1 General ......................................................................................................................................... 36 5.3.2 Tourism License .......................................................................................................................... 36 5.3.3 Enforcement ................................................................................................................................. 37 6 Wildlife (Conservation and Management) Act ........................................................... 38 6.1 Wildlife (Conservation and Management) Act .................................................................................... 38 6.1.1 General ......................................................................................................................................... 38 6.1.2 Requirements within National Parks and Reserves...................................................................... 39 6.1.3 Requirements in Relation to Trophies ......................................................................................... 42 6.1.4 Cancellation and Forfeiture .......................................................................................................... 42 6.1.5 Suspension ................................................................................................................................... 43 6.1.6 Supervision and Prosecution ........................................................................................................ 43 6.2 Empirical Findings .............................................................................................................................. 44 6.2.1 General ......................................................................................................................................... 44 6.2.2 Mombasa Marine National Park and Reserve .............................................................................. 45 6.2.2.1 Marine Tourist Activities ..................................................................................................... 45 6.2.2.2 Environmental Requirements ............................................................................................... 45 6.2.2.3 Enforcement ......................................................................................................................... 47 6.2.2.4 Norms of Tourist Activity Organizers.................................................................................. 50 6.2.3 Kisite Mpunguti Marine National Park and Reserve ................................................................... 53 6.2.3.1 Marine Tourist Activities ..................................................................................................... 53 6.2.3.2 Environmental Requirements ............................................................................................... 53 6.2.3.3 Enforcement ......................................................................................................................... 54 6.2.3.4 Norms of Tourist Activity Organizers.................................................................................. 57 7 Analysis ........................................................................................................................... 58 7.1 Environmental Management and Co-ordination Act ........................................................................... 58 7.1.1 Environmental Requirements ....................................................................................................... 58 7.1.1.1 Project Report and Environmental Impact Assessment License .......................................... 58 7.1.1.2 Pollution ............................................................................................................................... 59 7.1.2 Enforcement ................................................................................................................................. 59 7.2 Tourist Industry Licensing Act ............................................................................................................. 60 7.2.1 Environmental Requirements ....................................................................................................... 60 7.2.2 Enforcement ................................................................................................................................. 62 7.3 Tourism Act ......................................................................................................................................... 62 7.3.1 Environmental Requirements ....................................................................................................... 62 7.3.1.1 Tourism License ................................................................................................................... 62 7.3.1.2 Pollution ............................................................................................................................... 63 iv 7.3.2 Enforcement ................................................................................................................................. 64 7.4 Wildlife (Conservation and Management) Act .................................................................................... 64 7.4.1 Environmental Requirements ....................................................................................................... 64 7.4.1.1 Entering or Residing in a Marine National Park and Reserve .............................................. 64 7.4.1.2 Cutting or Injuring Marine Vegetation ................................................................................. 64 7.4.1.3 Object of Scientific Interest.................................................................................................. 65 7.4.1.4 Disturbing or Stampeding Marine Animals ......................................................................... 65 7.4.1.5 Possession of Marine Animals ............................................................................................. 66 7.4.1.6 Written Authorization .......................................................................................................... 66 7.4.1.7 The Wildlife (Conservation and Management) (National Parks) Regulation ...................... 67 7.4.1.8 Allowed Marine Tourist Activities ...................................................................................... 68 7.4.2 Enforcement ................................................................................................................................. 69 7.4.3 Relation between Norms of the Kenya Wildlife Service and Legal Rules .................................. 71 7.5 Norms of Tourist Activity Organizers in Mombasa ............................................................................. 73 7.5.1 Environmental Requirements ....................................................................................................... 73 7.5.2 Enforcement ................................................................................................................................. 73 7.5.3 Relation between Norms of Tourist Activity Organizers and Legal Rules .................................. 74 8 Conclusions and Reflections ......................................................................................... 76 8.1 Legal Environmental Requirements..................................................................................................... 76 8.2 Enforcement of Legal Environmental Requirements ........................................................................... 77 8.3 Environmental Requirements of Kenya Wildlife Service ..................................................................... 78 8.4 Environmental Requirements of Tourist Activity Organizers .............................................................. 79 8.5 Suggestion for Further Research ......................................................................................................... 79 References .......................................................................................................................... 81 Literature and Articles............................................................................................................................... 81 Official Publications .................................................................................................................................. 82 Other Sources ............................................................................................................................................ 83 Appendix 1 ......................................................................................................................... 85 Appendix 2 ......................................................................................................................... 87 Appendix 3 ......................................................................................................................... 88 Appendix 4 ......................................................................................................................... 89 Appendix 5 ......................................................................................................................... 90 Appendix 6 ......................................................................................................................... 91 Appendix 7 ......................................................................................................................... 92 v Abbreviations AC African Convention on the Conservation of Nature and Natural Resources, Sept. 15, 1968 Art. Article Biological Diversity Regulation Environmental Management and Co-ordination (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) Regulations, 2006 BR World Commission on Environment and Development, Our Common Future, 1987 (or Brundtland Report) CBD Convention on Biological Diversity, June 5, 1982 CMS Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979 (or Bonn Convention) Constitution Constitution of Kenya, 2010 E.g. For example EIA Guideline Republic of Kenya, National Environmental Management Authority, Draft, Environmental Management and Coordination Act (No 8 of 1999) - Environment Impact Assessment Guidelines and Administrative Procedures, November 2002 EIA-license Environmental impact assessment license EIA Regulation Environmental (Impact citation. Assessment and Audit) Regulations, 2003 EMCA Environmental Management and Co-ordination Act, 1999 GVI Global Vision International JD Johannesburg Declaration on Sustainable Development KSh Kenyan Shillings KWS Kenya Wildlife Service London Convention Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972 (amended by Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Nov. 7, 1996) MARPOL Convention International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973 MBOA Used as an umbrella term for the Mombasa Boat Owners Association and the Mombasa Boat Operators Association MNPR Marine National Park and Reserve MT Ministry of Tourism vi NC Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region, June 21, 1985 (or Nairobi Convention) NCBOF North Coast Beach Operators Forum NEMA National Environment Management Authority NEC National Environment Council NP Protocol Concerning Protected Areas of Wild Fauna and Flora in the Eastern African Region, June 21, 1995 (or Eastern Africa Protocol) PCC Public Complaints Committee Pollution Prevention Regulation Environmental Management and Co-ordination (Prevention of Pollution in Coastal Zone and other Segments of the Environment) Regulations, 2003 RC Convention on Wetlands of International Importance, Feb. 2, 1971 (or Ramsar Convention) RD Rio Declaration on Environment and Development, June 13, 1992 Sec. Section TA Tourism Act, 2011 TILA Tourist Industry Licensing Act TILR Tourist Industry Licensing Regulations TRA Tourism Regulatory Authority TRI Tourism Research Institute UNCLOS United Nations Convention on the Law of the Sea, Dec. 10, 1982 Waste Management Regulation Environmental Management and Co-ordination (Waste Management Regulations), 2006 Water Quality Regulation Environmental Management and Co-ordination (Water Quality) Regulations, 2006 Wetlands Regulation Environmental Management and Co-ordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulation, 2009 WCMA Wildlife (Conservation and Management) Act WCMR Wildlife (Conservation and Management) (National Parks) Regulations WCMR, 2010 Wildlife (Conservation and Management) (National Parks) Regulations, 2010 1 1 Introduction 1.1 Background and Problem Tourism is one of the largest sectors of the global economy.1 In Kenya, tourism constitutes the third largest source of foreign income and is recognized as having a central role in achieving socio-economical development.2 In 2007, Kenya presented a long time vision for the development of the country called ³9LVLRQ´3 This has the overarching goal of making .HQ\D³DJOREDOO\FRPSHWLWLYHDQGSURVSHURXVQDWLRQZLWKDKLJKTXDOLW\RIOLIHE\´DQG tourism is described as a key sector in achieving this goal.4 Kenya aims at increasing the number of visiting tourists by a twofold and at becoming one of the ten leading tourist destinations globally.5 This is to be reached through various strategies, including further GHYHORSPHQWRI.HQ\D¶VFRDVWDQGof niche products, such as water based tourism.6 For a long time, tourism was generally perceived as environmentally friendly. Today, it is however recognized that no touULVP KDV ³]HUR-LPSDFW´ DQG WKDW when tourism in an area expands, the environmental impact increases.7 In Kenya, tourism is described to have caused large environmental impact, for instance degraded coral reefs and harmed other marine species.8 The importance of protecting and sustainably using the marine environment is recognized by various international instruments.9 Kenya is for instance party to conventions aiming at protecting the marine environment from pollution.10 These include the UNCLOS11, the London Convention12, the MARPOL Convention13 and the Nairobi Convention14.15 Coral reefs and sea-grass beds are recognized as particularly sensitive to pollution.16 Kenya has also ratified several international conventions recognizing the importance of protecting specific species, habitats and/or ecosystems.17 The African Convention18 recognizes the need of 1 Ikiara & Okech, p. 9. 2 Ikiara & Okech, p. 3 and 9, National Tourism Policy, Okech, p. 3 and 5, Strategic Plan 2008-2012, p. vi, and Vision 2030. 3 Vision 2030. 4 Vision 2030, p. 2 and 10. 5 Vision 2030, p. 10. 6 Vision 2030, p. 10 and 13. The majority of tourists visiting Kenya are accommodated at the coast, Honey, p. 296, Ikiara & Okech, p. 3, and 29, and Okech, p. 1-2. 7 Ikiara & Okech, p. 9. 8 Ikiara & Okech, p. 30, 34 and 54. 9 Webpage of The Energy & Biodiversity Initiative, p. 3 and 8, and webpage of United Nations Environment Programme, Legal Agreements Relating to the Marine Environment. 10 Ebbesson, p. 47, 57-59 and 107-109, and Louka, p. 23, 141, 146-148 and 164. 11 United Nations Convention on the Law of the Sea, Dec. 10, 1982. 12 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, which has been amended by Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Nov. 7, 1996. 13 International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973. 14 Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region, JXQH KHUHLQDIWHUµ1&¶  15 Webpage of Kenya Maritime Authority, webpage of United Nations, Treaties, and webpage of United Nations Environment Programme, Eastern Africa. 16 Louka, p. 143. 17 Ebbesson, p. 42, 57-59, 162-163 and 168, Louka, p. 299, and webpage of The Energy & Biodiversity Initiative, p. 3. 18 $IULFDQ&RQYHQWLRQRQWKH&RQVHUYDWLRQRI1DWXUHDQG1DWXUDO5HVRXUFHV6HSW KHUHLQDIWHUµ$&¶  2 conserving and rationally utilizing natural resources, for example flora, fauna and ecosystems.19 Dugong and all marine turtles, including their habitats, are recognized as requiring total protection.20 The Ramsar Convention21 recognizes the need to conserve and wisely use wetlands, including certain marine areas.22 This comprises ecosystems such as coral reefs and coastal lagoons.23 The Bonn Convention24 aims at protecting migrating animal species, including their habitats.25 Different sea turtle and dolphin species are listed as endangered migratory species requiring immediate protection and dugong is listed as having an unfavorable conservation status.26 The Nairobi Convention and the Eastern Africa Protocol27 specifically recognizes the importance of protecting the marine environment of the East African region.28 Among the animals listed in the protocol as requiring specific protection are species of marine turtles, clams, corals and dugong.29 Kenya is also party to the Convention on Biological Diversity30 KHUHLQDIWHU µ&%'¶ .31 CBD has a holistic approach to biodiversity protection and aims at ensuring conservation and sustainable utilization of biodiversity in general.32 Biodiversity is defined as: ³the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part: this includes diversity within VSHFLHVEHWZHHQVSHFLHVDQGRIHFRV\VWHPV´33 CBD not only acknowledges for instance the economical, recreational, aesthetical, social and ecological values of biodiversity, but also its ³intrinsic value´.34 Conservation of biodiversity is recognized as a common concern globally and as an important part in obtaining sustainable development.35 19 AC, art. 2-3, 6-8 and 10, Ebbesson, p. 40-41 and Louka, p. 326-330. The Convention Relative to the Preservation of Fauna and Flora in their Natural State, Nov. 8, 1933, was one of the first international conventions of biodiversity protection. This was developed by colonial governments in Africa and intended to apply to their colonial territories, for instance Kenya. This was revised by AC in 1968, which has strongly influenced wildlife laws in Africa. See Ebbesson, p. 40, Kameri-Mbote & Cullet, p. 7, and Louka, p. 28. 20 AC, art. 8 and List of Protected Species (Class A), and Louka, p. 326. 21 &RQYHQWLRQRQ:HWODQGVRI,QWHUQDWLRQDO,PSRUWDQFH)HE KHUHLQDIWHUµ5&¶  22 RC, preamble, art. 1 and 3-4, Ebbesson, p. 179, Louka, p. 322, and webpage of CMS, Kenya - Format for Reports of Parties on Implementation of the Convention on the Conservation of Migratory Species of Wild Animals7KH6L[WK&RQIHUHQFHRIWKH3DUWLHVKDVLQWHUSUHWHGµZLVHXVH¶DVVXVWDLQDEOHXVH/RXNDS 23 Okidi et al, p. 335-336. 24 Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979 KHUHLQDIWHUµ&06¶  25 CMS, preamble, art. 1-2, Ebbesson, p. 167-168, webpage of CMS, Parties to the Convention on the Conservation of Migratory Species of Wild Animals and its Agreements, p. 4. 26 CMS, art. 3 and Appendix 1, Louka, p. 335-336, and webpage of CMS, Parties to the Convention on the Conservation of Migratory Species of Wild Animals and its Agreements. Kenya has also signed the Memorandum of Understanding on the Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asia, 2000, webpage of CMS, Parties to the Convention on the Conservation of Migratory Species of Wild Animals and its Agreements. 27 Protocol Concerning Protected Areas of Wild Fauna and Flora in the Eastern African Region, June 21, 1995 (WKHUHLQDIWHUµ13¶  28 See for example NC, preamble and art. 10 and NP, art. 2-7. 29 NP, Appendix 2-4. 30 Convention on Biological Diversity, June 5, 1982. 31 Webpage of CBD, List of Parties. 32 CBD, preamble and art. 2, Christiernsson, p. 121, Ebbesson, p. 17 and 162-164, and Louka, p. 299. 33 &%'DUW$QHFRV\VWHPLV³DG\QDPLFFRPSOH[RISODQWDQLPDODQGPLFURRUJDQLVPFRPPXQLWLHVDQGWKHLU non-OLYLQJ HQYLURQPHQW LQWHUDFWLQJ DV D IXQFWLRQDO XQLW´ DQG KDELWDW LV ³WKH SODFH RU W\SH RI VLWH ZKHUH DQ organiVPRUSRSXODWLRQQDWXUDOO\RFFXUV´&%'DUW 34 CBD, preamble. Compare with for example the preambles of AC, CMS and NP. 35 CBD, preamble, Christiernsson, p. 22 and 119-121, Kameri-Mbote & Cullet, p. 1, and Louka, p. 38 and 54. 3 The concept sustainable development was first presented in the Brundtland Report36, GHILQHGDV³development that meets the needs of the present without compromising the ability RIIXWXUHJHQHUDWLRQVWRPHHWWKHLURZQQHHGV´37 The concept has also been expressed in for example the Rio Declaration38 and the Johannesburg Declaration39, the latter recognizing sustainable development as consisting of three mutually dependent pillars: economical development; social development; and environmental protection.40 The international community has thus recognized that the interests of environmental protection and socio- economical development have to be balanced and jointly addressed.41 It has also acknowledged that, when balancing these interests, consideration has to be made to the special situation of low-developed countries.42 This brief description of international law is intended to provide a background understanding of the importance that the international community attaches to ensuring conservation and sustainable utilization of marine biodiversity, but also to considering the special situation of developing countries. The specific influence of international environmental law at national level depends on the implementation measures undertaken by individual states.43 A common method of how to conserve marine biodiversity, recognized by various international instruments, is establishment of marine protected areas.44 Under the :LOGOLIH &RQVHUYDWLRQDQG0DQDJHPHQW $FW KHUHLQDIWHUµ:&0$¶ .HQ\DKDVHVWDEOLVKHG four marine national parks and six marine national reserves along the Kenyan coastline.45 These are managed by WKHJRYHUQPHQWDJHQF\.HQ\D:LOGOLIH6HUYLFH KHUHLQDIWHUµ.:6¶  This essay focuses on two of these marine national parks and reserves. Mombasa marine national park (10 km2) and Mombasa marine national reserve (200 km2) were as established in 1987 and are situated along the coast in Mombasa (hereinafter together referred to as µ0RPEDVD 0135¶ . Kisite marine national park (28 km2) and Mpunguti marine national reserve (11 km2) were established in 1973 and are situated further out in the ocean near Shimoni (hereinafter together referred to as µ.LVLWH 0SXQJXWL 0135¶ .46 These marine protected areas consist of biodiversity rich ecosystems such as coral reefs and sea grass beds, described as having a high ecological as well as economical value.47 There is a large variety of marine flora and fauna, including species recognized as requiring special protection in the international conventions described above.48 Mombasa MNPR and Kisite Mpunguti MNPR are popular destinations for tourist excursions and different kinds of marine tourist activities can be performed within these areas. Tourists undertaking such activities can benefit the local as well as the national economy, and thereby contribute to socio-economical development in Kenya.49 Marine tourist activities are 36 World Commission on EnviURQPHQWDQG'HYHORSPHQW2XU&RPPRQ)XWXUH KHUHLQDIWHUµ%5¶  37 BR, Chapter 2, and Louka, p. 52. 38 5LR'HFODUDWLRQRQ(QYLURQPHQWDQG'HYHORSPHQW-XQH KHUHLQDIWHUµ5'¶  39 Johannesburg Declaration on Sustainable Development (hereinafter µ-'¶  40 Louka, p. 52-53. 41 Ebbesson, p. 41, 43-45 and 48-50, Kameri-Mbote & Cullet, p. 6, and Louka, p. 9, 29, 32 and 52-53. 42 BR, Chapter 2, CBD, preamble, Christiernsson, p. 120, and Ebbesson, p. 44, Louka, p. 38 and 54. 43 See for example Christiernsson, p. 121 and 127-128, Ebbesson, p. 11, 21, 52, 64-66 and 68, Kameri-Mbote & Cullet, p. 6-7, and Louka, p. 149, 300 and 326. See for example CBD, preamble, art. 3, 6-11 and 14 (as far as possible and as appropriate), NC, art. 10 (all appropriate) and NP, art. 8 (where necessary). 44 Louka, p. 289-291, 300-301, 326, 328 and 342. See for example AC, art. 3 and 10, NC, art. 10, NP, preamble and art. 8-10, and CBD, preamble and art 8. NP specifically mentions that regulation of pleasure craft activities should be considered when required to fulfil the objective of an area protection, NP, art. 10. 45 Muthiga, p. 1. 46 Frontani, p. 18. The marine protected area has been expanded two times (1976 and 1978). 47 Muthiga, p. 1. 48 Webpage of KWS, Facts about Kisite Mpunguti and webpage of KWS, Mombasa Marine Reserve. 49 Ikiara & Okech, p. 42 and 54, and Salm, p. 230. 4 however also connected with a risk of damaging the marine environment.50 Information about environmental impact from marine tourist activities taking place within Mombasa MNPR and Kisite Mpunguti MNPR appears scarce.51 Risks that these kinds of activities are connected with can however be illustrated by a few examples of impact on the marine environment that these kinds of activities have caused in other marine areas. Divers and snorkelers have injured corals reefs through kicking with fins, touching and stirring up sediment.52 Careless boating, particularly anchoring, has also harmed coral reefs.53 Sea turtles have died after eating clear plastic bags, which they confuse with jelly fish, or after colliding with jet-skis or boats.54 The marine environment has also been negatively affected by collection of corals and shells.55 Furthermore, marine animals, such as dolphins and dugongs, have been disturbed by large number of boats and tourists getting too close.56 Mombasa MNPR and Kisite Mpunguti MNPR have the objectives of conserving marine biodiversity as well as supporting tourism.57 As described, marine tourist activities are connected with a risk of harming the marine environment which the marine protected areas are established to conserve. If the objectives are to be properly integrated, it therefore appears important that marine tourist activities are adequately regulated.58 Kenya is generally described as having problems in ensuring effective environmental governance.59 Specific challenges in relation to Kenyan marine national parks and reserves are for example that marine ecosystems, including the activities taking place within these areas, fall within the ambit of various legislations, causing ineffective coordination and enforcement.60 Furthermore, WCMA and the regulations under this act were developed for terrestrial areas and are therefore considered inadequate in relation to marine national parks and reserves.61 In Kenya, there are however also incentives of developing more informal norms, such as codes of conduct, to regulate tourist activities.62 Legal regulation as well as regulation through such more informal norms could have a role on minimizing negative impact on the marine environment from marine tourist activities.63 1.2 Purpose and Questions The general purpose of this essay is to study how marine tourist activities, directly influencing the marine environment within Kisite Mpunguti MNPR and Mombasa MNPR, are regulated. 50 Salm, p. 229. 51 See for example Ikiara & Okech, p. 10 and 20. 52 Ikiara & Okech, p. 20, Ransom & Mangi, p. 152, Salm, p. 229, and webpage of WWF. 53 Ikiara & Okech, p. 20, Sand, p. 229 and 231, and webpage of WWF. 54 Webpage of Bermuda Zoological Society and webpage of GVI Kenya. 55 Ikiara & Okech, p. 20, Salm, p. 229-230, and webpage of WWF. 56 Ransom & Mangi, p. 152, and webpage of WWF. 57 WCMA, preamble and sec. 3A, Muthiga, p. 1, Okidi et al, p. 291, and webpage of KWS, General Information of Kisite/Mpunguti Marine Park and Reserve. 58 Honey & Gilpin, p. 8, Okech, p. 3, and Salm, p. 230-231 and 236. 59 Ikiara & Okech, p. 32, 45 and 55-56, Kamau, p. 229, and Sida, p. 2. 60 Ikiara & Okech, p. 42, and Muthiga, p. 1-2. 61 Muthiga, p. 1. 62 Ikiara & Okech, p. 43-44, 47-50 and 57-58, Muthiga, p. 5, Okech, p. 3-5, and United Nations Environment Programme, 1995, p. 59-60. See for instance Ikiara & Okech, p. 32, 41-53 and 55, webpage of Ecotourism Kenya and webpage of Mombasa & Coast Tourist Association for examples. Ikiara & Okech notes that in order to effectively enforce tourism associations codes of conduct there is need for legal reinforcement, which does not exist in Kenya, Ikiara & Okech, p. 50. United Nations Environment Programme warns that too many codes of conduct could lead to confusion and as a consequence not achieve their purpose, United Nations Environment Programme, 1995, p. 59. 63 Honey & Gilpin, p. 1 and 9-10. 5 The aim is to examine which legal environmental requirements tourist activity organizers and tourists must comply with during marine tourist activities. The purpose is also to investigate which environmental requirements, in legal rules as well as more informal norms, that KWS demands tourists and tourist activity organizers to comply with. Furthermore, the objective is to examine if tourist activity organizers have own norms with environmental requirements which regulate marine tourist activities. The purpose is also to study how these different environmental requirements are enforced. Furthermore, the aim is to, on a more general level, create an understanding of how environmental requirements applied by KWS and/or tourist activity organizers seem to relate to and interact with legal environmental requirements. The objective of this essay is to gain theoretical as well as practical insights on the subject. In order to fulfil the purpose of the essay, I will answer the following questions: 1. What legal environmental requirements must tourist activity organizers and tourists comply with during marine tourist activities? 2. Which environmental requirements (in legal rules and more informal norms) does KWS demand tourist activity organizers and tourist to comply with during marine tourist activities? 3. Do tourist activity organizers have own collective norms (e.g. codes of conduct) with environmental requirements which tourist activity organizers must comply with during marine tourist activities? 4. How are environmental requirements in question 1-3 enforced? 5. How do the environmental requirements which KWS and/or tourist activity organizers apply relate to and interact with legal environmental requirements? 1.3 Employed Definitions In this essay, the following terms are employed with the given definitions. Marine tourist activity: Water based tourist activity taking place within Mombasa MNPR and/or Kisite Mpunguti MNPR, organized through tourist activity organizers. See subchapter 6.2.2.1 and 6.2.3.1 for specifications of the kind of marine tourist activities taking place within Mombasa MNPR and Kisite Mpunguti MNPR. Sanction: Different kinds of penalties connected to a violation of an environmental requirement, including for example fine, imprisonment and payment of the costs for cleaning up a polluted environment. Tourist: Person undertaking marine tourist activities through a tourist activity organizer. This includes resident, non-resident as well as citizen persons. Tourist activity organizer: Businessman from the local community near Mombasa MNPR or Kisite Mpunguti MNPR involved in organizing marine tourist activities. This comprises for example salesman, captain and guide.64 64 In Mombasa MNPR, there seem to be two main groupings of businesses organizing marine tourist activities. The people of the local community operate marine tourist activities from the beach and are in this essay referred to as tourist activity organizers. The other businesses derive from the hotels and are normally referred to as µKRWHOLHUV¶7KLVVWXG\LVWKXVOLPLWHGWRWKHILUVWPHQWLRQHGJURXS 6 During interviews with KWS officers and tourist activity organizers in Mombasa MNPR and Kisite Mpunguti MNPR, reference was made to environmental requirements in different sources, for instance legislations, codes of conduct and unwritten sources. It was not always clear from which source the mentioned environmental requirements derived. The reader of this essay must therefore be aware that it is inevitable that this ambiguity is reflected in the essay. With the purpose of making it clear what I mean ZLWKµQRUP¶DQGµOHJDO¶in this essay, I use the terms below in the following manner. Norm: I use the definition of norm described in subchapter 2.2. It should be noted that the term norm in this essay does not exclude the possibility that the norm is a legal rule. Legal rules are thus perceived as a type of norm. I perceive norms as comprising a grayscale of legal rules to more informal norms. Legal: Applied when a norm is clearly derived directly from legislations, regulations and/or licenses/permissions (e.g. legal environmental requirement and legal rule). 1.4 Limitations Marine tourist activities impact the environment in different manners and these impacts are regulated by provisions in various Kenyan legislations. This essay is limited to the regulation of direct impact on the marine environment and does not for example describe the regulation of impact on air or beach quality. Furthermore, the essay is limited to the following legislations: the Environmental Management and Co-ordination Act, 1999 (hereinafter µ(0&$¶  the 7RXULVW ,QGXVWU\ /LFHQVLQJ$FW KHUHLQDIWHU µ7,/$¶  the Tourism Act, 2011 KHUHLQDIWHUµ7$¶ and WCMA, including the regulations and licenses under these acts. The CoQVWLWXWLRQRI.HQ\D KHUHLQDIWHUµ&RQVWLWXWLRQ¶ LVDOVREULHIO\FRQVLGHUHG Furthermore, focus is mainly on the following public authorities: the National (QYLURQPHQW 0DQDJHPHQW $XWKRULW\ KHUHLQDIWHU µ1(0$¶  the Ministry of Tourism KHUHLQDIWHUµ07¶ , the 7RXULVP5HJXODWRU\$XWKRULW\ KHUHLQDIWHUµ75$¶ and KWS. Focus is primarily on their roles in prescribing and enforcing environmental requirements. With the exception of the Public Complaints Committee KHUHLQDIWHU µ3&&¶ , the roles of different committees within theses authorities are not specified. 1(0$¶V SRZHU WR HQVXUH WKDW OHDG agencies obligations in relation to the environment are fulfilled is not explained. The essay primarily has a national Kenyan perspective and does not, for example, investigate whether national law is compatible with international law. Furthermore, the delimitation of Kenyan territorial waters is not described, since it seems clear that marine tourist activities take place within this area and that Kenya thus has full jurisdiction to prescribe and enforce legal environmental requirements.65 Legal provisions relating specifically to non-citizen persons or ships from other nations are not either considered. The essay is based on the simplified precondition that the same legal rules apply to these persons and ships as to Kenyan citizens and Kenyan ships. The essay does not explain how conflicting provisions are handled under Kenyan law or which provisions that should be applied when different provisions appear to have similar content. Identified conflicts or uncertainties are therefore noted without a deeper analysis of to 65 Unfortunately I have not been able to identify the exact delimitation of Mombasa MNPR and Kisite Mpunguti MNPR. See Okidi et al, p. 445-447, for a discussion about the determination of the baseline and Kenyan territorial waters. See also UNCLOS, art. 2-16. 7 handle these. When various provisions appear to have similar content, these are referred to in the foot notes and examples or summaries are made in the text. Transitional provisions are not either considered, except through references in the footnotes in a few cases. For example, the new Constitution might affect the legislations this essay focuses on, but the simplified presumption is made that these legislations are valid as currently written.66 Since a new court system is developed under the Constitution, the general WHUPµFRXUW¶LV applied in the essay and different courts¶ jurisdictions are not specified. A general delimitation made in the legal investigation is that procedural law and law governing the authorities is only described to the extent this appears to be of direct relevance for the prescription or enforcement of legal environmental requirements. This delimitation is however sometimes difficult to draw. For instance, when the substantive law which authorities are to consider during licensing procedures seems vague, procedural law appears relevant in order to understand whether this could result in legal environmental requirements. The following limitations have been made when identifying environmental requirements. It is only requirements directly relating to the performance of marine tourist activities that are described, not for example how to handle waste after an excursion. A prohibition against performing marine tourist activities is however considered an environmental requirement which directly affects the performance of marine tourist activities. Requirements relating to noise levels, vibration levels or effluent discharge are not described. It is only regulation of pollution through discharge of waste or fuel (e.g. petrol/diesel) that is described. Furthermore, requirements relating specifically to fishing, hunting or ports are not described. In relation to offences, it is only offences which seem to result in legal environmental requirements that are included. Offences indirectly relating to legal environmental requirements or the enforcement of these, such as provision of false information and contravening authorities¶ or courts¶ decisions, fall outside the scope of this essay. In relation to the enforcement of legal environmental requirements, focus in the legal investigation is on describing the enforcement by the above mentioned authorities, including the actions these can take in the first court instances. Procedural rules on court proceedings are not described (e.g. issues of criminal liability and evidence). Individuals¶SRVVLELOLWLHV to enforce legal environmental requirements through court proceeding are not considered. Rules on compensation to third parties, affected by a violation of a legal environmental requirement, are not described. EMCA and TA provides for various instruments to be developed (e.g. reports, plans and inventories), which can directly or indirectly have roles in regulating marine tourist activities.67 In this essay, it is however only possible to describe such instruments when they appear to be of direct relevance for the prescription or enforcement of legal environmental requirements. Furthermore, it is only possible to briefly describe monitoring of environmental impact when this appears to be of direct relevance for the prescription or enforcement of legal environmental requirements. The following limitations are specifically made in relation to EMCA and the regulations under this act. Provisions that clearly only relate to activities with significant environmental impact are not described. This for example means that it is only the requirement of issuing a 66 See Constitution, art. 2(4). 67 Several instruments shall be developed by NEMA to, for example, monitor the state of the environment, identify environmental impacts and potential measures to handle these. For further information see: EMCA, sec. 9(2p and 3); EMCA, sec. 37-41; EMCA, sec. 42(3) and Environmental Management and Co-ordination (Wetlands, River BanNV /DNH 6KRUHV DQG 6HD 6KRUH 0DQDJHPHQW  5HJXODWLRQ  KHUHLQDIWHU µWetlands 5HJXODWLRQ¶  VHF  DQG  EMCA, sec. 50-51 and Environmental Management and Co-ordination (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) 5HJXODWLRQV KHUHLQDIWHUµ%LRORJLFDO'LYHUVLW\5HJXODWLRQ¶ VHF-7; and EMCA, sec. 55(2-4). 8 project report which is considered, not the requirement of undertaking an environmental impact assessment.68 This also entails that environmental auditing is not described.69 The requirement of adopting a strategic environmental plan is only considered to the extent this appears relevant in the licensing of marine tourist activities under TILA. A deeper description is therefore not made of this instrument. The possibility to prescribe water quality standards is not either considered, since such standards do not seem to have been developed for wildlife or fisheries.70 Not either the requirement of having a wetland resource use permit is described, since it does not seem like this is required in relation to marine tourist activities.71 Furthermore, the possibility to use the national environmental restoration fund, environmental easements and conservation orders are not considered. Incentives are undertaken by various stakeholders in Kenya to promote environmental consideration during marine tourist activities, for example through codes of conduct. In this essay, it is only possible to describe examples of such more informal norms. As the purpose and questions imply, the essay is limited to such more informal norms applied by KWS and/or tourist activity organizers. In relation to norms of tourist activity organizers, focus is on norms that are collectively applied by groups of tourist activity organizers. Individual incentives are thus not included. In Mombasa MNPR, tourist activity organizers are required to be organized into associations, but there are also unorganized tourist activity organizers in this area. In relation to Mombasa MNPR, the study focuses on tourist activity organizers that are members of associations. Finally, TA is included in this essay since it seems like this legislation in the near future will replace TILA. The focus of the essay is however primarily to identify and describe how marine tourist activities currently are regulated. The essay does thus not investigate the reasons for or the effectiveness/adequacy of this regulation. An investigation is for example not made of whether the regulation is satisfying in order to ensure conservation of marine biodiversity. The reason for this is that I believe my knowledge and overview to be too limited in order to give such comments. In subchapter 9.5, I however provide examples of how insights gained through this study could be taken further through future research. 68 For more details, see EMCA sec. 58 ± 65, Environmental (Impact citation. Assessment and Audit) 5HJXODWLRQV KHUHLQDIWHUµEIA 5HJXODWLRQ¶ 3DUW,,,-IV, and EIA Guideline, p. 1-17. EIA Regulation, sec. 4(1), requires an EIA to be undertaken when the environmental impact is negative or when required under EMCA or the EIA Regulation. This gives the impression that the EIA Regulation lowers the required environmental impact. EIA Regulation, sec. 10(3), however requires EIA to be performed first if the impact is significant. Wetlands Regulation and Biodiversity Regulation contain requirements of performing an EIA when an activity has adverse environmental impacts, Biological Diversity Regulation, sec. 4 and Wetlands Regulation, sec. 5. When analyzing the regulations under EMCA together, µadverse¶ VHHPV synonymous to µsignificantly negative¶, see EIA Regulation, sec. 4(1) and 10(3), Wetlands Regulation, sec. 2-3, 5, 17(b) and 21 and Biological Diversity Regulation, sec. 2 and 4. 69 See EMCA, sec. 68, EIA Regulation, Part V, and EIA Guideline, p. 2, 6 and 18, for more information. 70 NEMA shall recommend quality standards for all Kenyan waters for different purposes, for example wildlife and fisheries, EMCA, sec. 70(1) and 71(b). The Environmental Management and Co-ordination (Water Quality) 5HJXODWLRQV  KHUHLQDIWHU µ:DWHU 4XDOLW\ 5HJXODWLRQ¶  does not contain any water quality standards for wildlife or fisheries, Water Quality Regulation, Tenth Schedule. 71 See Wetlands Regulation, sec. 2, 12 and 19. According to the definition, this includes permits granted for ³QRQ-extractive uses [of wetland] such as tourism and cultural activitieV´DQG certain marine areas are included as wetland, Wetlands Regulation, sec. 2. I however find it unclear how non-extractive uses such as tourism relate to the activities outlined in EMCA, sec. 42. 9 1.5 Methodology 1.5.1 Selection of Subject and Area for the Minor Field Study There are several reasons why I chose to perform a minor field study in Kenya in this subject. An interest about how to suitably balance tourism development and environmental protection has gradually evolved when travelling to other developing countries, where I have for example observed that marine tourist activities have negatively impacted coral reef ecosystems. A reason why I found Kenya suitable for the minor field study was that the Kenyan tourism sector is under expansion. This winter (2011-2012) direct flights have for example started from Sweden to the Kenyan coast. An increased number of tourists naturally lead to higher impact on the environment. I therefore found it of interest to examine how marine tourist activities are regulated in Kenya in order to minimize negative impact on the marine environment. There are mainly practical reasons why I found it suitable to focus the study on Mombasa MNPR and Kisite Mpunguti MNPR. My contact with Arthur Tuda at KWS in Mombasa made it a natural choice to include Mombasa MNPR. The focus on Kisite Mpunguti MNPR, instead of other marine national parks and reserves, was mainly chosen because of security reasons. The specific focus of this essay has of several reasons gradually evolved. The purpose was initially to study the regulation of marine tourist activities promoted as having an eco-tourism profile, organized by Swedish companies. The idea was to investigate the role of legal regulation and self-regulation in minimizing impact on the marine environment. After interviewing a few Swedish companies, I however realized that there are too many middlemen between Swedish and Kenyan companies in order to set up the study as planned. I therefore decided to concentrate on Kenyan companies with eco-tourism profiles. During the minor field study in Kenya, I however realized that no tourist activity organizers in Mombasa MNPR or Kisite Mpunguti MNPR have explicit ecotourism profiles. Since my intention from start was to not only investigate the role of legal regulation, it was natural to include other types of more informal norms applied by KWS and tourist activity organizers in this study. 1.5.2 General Information Sources I have reviewed secondary sources, such as literature, articles and information at internet websites, in order to gain an overview of the subject of this essay and knowledge about for instance tourism, environmental impact from tourism, international environmental law, theories and methodological issues. International environmental law has also been studied through primary legal sources in the form of international conventions. These sources have primarily been used when writing chapter 1 to 3 of this essay. 1.5.3 Legal Investigation The legal investigation in Kenyan law is presented in subchapters 3, 4.1, 5.1, 5.2 and 6.1, and it forms the base for large parts of the analysis. In this subchapter, a description is given of how this legal investigation has been performed. The first subchapter describes the general methodology. The subsequent subchapter contains a more detailed description of some of the methodological challenges that have occurred and how I have attempted to handle these. 1.5.3.1 General The legal investigation of this essay is based on a judicial dogmatic methodology. At the initial stage, legislations were identified through the website of the National Council for Law Reporting (Kenya Law Reports) and these were studied in order to gain an overview.72 Brief 72 This is the official website of the public body National Council for Law Reporting (see www.kenyalaw.org). Other legislations that might have been relevant to study are for example: Coast Development Authority Act; 10 consultations were also made with a couple of Kenyan lawyers and a KWS officer at this stage. Among the identified legislations, EMCA, TILA, TA and WCMA were identified as most relevant for the purpose of this essay. I chose to focus on four legislations due to the limited amount of time for conducting this study. It was natural to include WCMA, since Mombasa MNPR and Kisite Mpunguti MNPR are protected under this legislation. EMCA was included since it is the framework law on environmental governance. TILA was included since it regulates the licensing of marine tourist activities. In order to highlight the changes which currently are in process, I also found it of relevance to include TA, which will succeed TILA. The legal investigation is primarily based on an examination and textual analysis of primary legal sources. Focus has been on EMCA, TILA, TA, WCMA, and the regulations under these acts. I have also studied relevant parts of the Constitution. Relevant secondary sources on Kenyan law, which I have identified, have also been studied. It has not been possible to study case law, since my attempts to identify whether relevant case law exists have been unsuccessful. Policies I have been able to identify through internet and literature have briefly been studied. Focus has however been on investigating primary legal sources, since policies seem to have a weak standing in Kenyan law (see Chapter 3). 1.5.3.2 Methodological Challenges and Attempts to Handle These There are methodological challenges connected with studying the law of another country. This subchapter is intended to provide the reader an understanding of the most relevant methodological challenges that I have experienced during the legal investigation and how I have attempted to handle these, in order to create transparency in the study. Advice given by Bogdan, on considerations to be made when studying the law of another country, forms the basis and structure around which I elaborate some of my own experiences in this subchapter.73 Bogdan mentions the importance of gaining basic knowledge about the foreign legal system, since there can be large differences between legal cultures and systems.74 I have attempted to gain basic knowledge about the Kenyan legal system and some basics are presented in Chapter 3 of this essay. Kenya has however recently adopted a new Constitution and the Kenyan legal system is therefore currently undergoing large changes. It has not been possible to identify updated literature on the Kenyan legal system. A general textbook on .HQ\DQODZZULWWHQLQWKHODWH¶VKDVWKHUHIRUHEHHQXVHGIRUWKLVSXUSRVH75 Aware that this textbook might be outdated, I have only been able to use it to gain knowledge about fundamental principles of Kenyan law and have attempted to consult primary legal sources in order to ensure the accuracy. I have also studied the Constitution, but since it is not at this stage fully implemented, I have only been able to consider this to a minor extent. In order to gain a better understanding, I have also studied principles of how to interpret British statutory law, since these might be similar to the principles applied in Kenyan law (see Chapter 3). Bogdan also notes that it is easy to unconsciously presume that such things as concepts, hierarchy of legal sources and methods of interpretation, can be used in the same manner in WKH IRUHLJQ OHJDO V\VWHP DV LQ WKH KRPH FRXQWU\¶V OHJDO V\VWHP76 I have made an effort to study Kenyan law without making such presumptions. This has however been a challenge. A large difference between Kenyan law and Swedish law is for example that Swedish law is based on statutory law and Kenyan law is based on common law. Kenyan environmental law Fisheries Act; Kenya Maritimes Authority Act; Local Government Act; Maritimes Zones Act; Merchant Shipping Act; Physical Planning Act; Water Act. 73 Bogdan, p. 39. 74 Bogdan, p. 19, 40 and 43-48. 75 Jackson. 76 Bogdan, p. 40 and 44-45. 11 however primarily consists of written law and, by limiting this essay to written law, I have attempted to focus on the kind of legal sources that I am familiar with handling.77 Furthermore, as mentioned below, the secondary sources that I have identified have been of limited aid concerning how to interpret legal provisions in relation to marine tourist activities. I have, as a consequence, primarily had to rely on the knowledge I have gained through my Swedish law education and a challenge has been how to balance when, and when not, to be guided by my Swedish presumptions.78 In the essay, I note when I find aspects uncertain. Bogdan also mentions that, when investigating the specific subject of the study, it is rational to examine secondary sources before primary legal sources.79 I have gained general knowledge in Kenyan environmental law through secondary sources, primarily a textbook published in 2008.80 A large challenge has however been that it has only to a limited extent been possible to find information in secondary sources of relevance for the specific subject of this essay. This has for example resulted in that I have studied a great amount of primary legal sources and have had difficulties to gain an overview and identify a suitable focus for the study. Furthermore, it has resulted in that I have not been able to resolve the issues I find unclear in the primary legal sources. Bogdan also explains that it is essential to ensure that relevant and accurate legal materials are studied.81 I have attempted to be careful to certify this during the study, but there have been practical difficulties. For example, it was a challenge to identify whether TILA or TA is in force and it was first when performing the interview at MT that this could be resolved. It has also been difficult to determine which materials that exist and thus whether the relevant materials have been identified. For example, it took me a few weeks in Kenya before I understood that Kenyan marine national parks and reserves do not have specific local regulations, which I had initially planned to focus the study on. When I am aware of relevant materials that I have not been able to access, this is indicated in the footnotes of the essay. Furthermore, Bogdan mentions the challenge language barriers can cause.82 The legal materials of relevance for this study have been available in English. It should however be noted that I do not have English as my first language. There have been some difficulties in understanding the exact meaning of legal terms and in identifying translations of jurisprudential terminology. Despite my efforts to minimize the effects of this language barrier, it influences the quality of this essay. Finally, Bogdan points out that qualified colleagues can be contacted in order to ensure that legal materials are interpreted correctly.83 I have primarily performed this study on my own, based in Mombasa, and my efforts to get in contact with Kenyan lawyers in Mombasa were unfortunately unsuccessful. I have however had sporadic contacts with four lawyers in Nairobi, of which a couple are specialized in Kenyan environmental law. These have briefly been consulted via e-mail and through a couple of personal meetings. It has however, of natural reasons, not been possible to clarify all the question marks I have. 77 Okidi et al, p. 3, 6-7 and 11. 78 An example of this is the environmental impact assessment procedure. According to my Swedish presumptions, this is not required for marine tourist activities. When studying EMCA and the regulations under this act I however find it difficult to exclude the possibility that tourist activity organizers might be required to submit a project report for certain marine tourist activities. I have therefore chosen to describe the possible requirement of submitting a project report. 79 Bogdan, p. 40 and 42. 80 Okidi et al. 81 Bogdan, p. 43. 82 Bogdan, p. 48-50. 83 Bogdan, p. 39 and 43. 12 1.5.4 Empirical Findings The empirical findings of this essay were gathered during a ten week long minor field study in Kenya, during the autumn/winter of 2011. These findings are presented in subchapters 4.2, 5.3 and 6.2. In this subchapter, a description is given of how the material was gathered. The first subchapter describes general issues and the subsequent subchapters contain aspects specifically relating to the different groups of respondents. 1.5.4.1 General The empirical findings of this essay were gathered through interviews. The purpose of performing interviews was to gain an understanding of how marine tourist activities are regulated in practice. I therefore primarily focused on performing interviews with different stakeholders in Mombasa MNPR and Kisite Mpunguti MNPR, primarily KWS officers and tourist activity organizers. Interviews have however also been done with authority officials at NEMA and MT in order to gain an understanding of how EMCA and TILA regulate marine tourist activities in practice. In total, twenty-four interviews have been performed. A list of the respondents, including details, is found in Appendix 1. Most of the interviews were performed with individual persons, but in a few cases group interviews were more suitable. The group interviews are presented in the empirical findings under a common term: Global Vision International KHUHLQDIWHU µ*9,¶); North Coast Beach Operators Forum KHUHLQDIWHU µ1&%2)¶ ; Mombasa Boat Owners Association and Mombasa Boat Operators Association (hereinafter collectively referred to as µ0%2$¶DQG LQGLYLGXDOO\84 DV µ0%2$ $ ¶DQG µ0%2$ % ¶  The interviews were normally performed through personal meetings, except one which was done via e-mail (see subchapter 1.5.4.2). A difficulty was to identify and arrange interviews with the best suited respondents by myself. It was therefore necessary to arrange interviews through contacts who have identified suitable respondents and which in their turn might have referred me to other suitable respondents. This method of finding suitable respondents is called snowball sampling and a risk with using this method is that I might not have identified the persons best suited to answer my questions.85 I have been aware of this risk when writing the analysis, especially in relation to responses of respondents at NEMA. The interviews have generally taken the form of semi-structured interviews, since this appears most suitable when studying an unexplored field, where the focus of the study may change.86 This means that questions have been asked in a predetermined order and that follow- up questions have been asked when I have found this suitable. This method has the advantage of allowing flexibility, by making it possible to include unexpected answers of respondents and to come back to ask supplementary questions for clarifications.87 Because of practical reasons, it has however not always been possible to ask for clarifications after the interviews. Interviews were recorded and transcribed when possible. I could then fully concentrate on the interview situation. When respondents wished not to be recorded, I instead attempted to take detailed notes. The drawback of this was that it was more difficult to concentrate on the interview situation and that there are fewer, more sporadic, notes from those interviews. Personal interviews are connected with a risk that answers of respondents can be influenced by the questions posed.88 A challenge when performing interviews about legislations was also that respondents could get the impression that my intention was to 84 These terms MBOA(A) and MBOA(B) are used to keep the organizations anonymous. 85 Esaiasson et al, p. 212 and 286. 86 Esaiasson et al, p. 279 and 281. 87 Esaiasson et al, p. 279. 88 Esaiasson et al, p. 290-291. 13 control their compliance with legal rules. Also my connection to KWS might have given this impression. I attempted to avoid this by explaining that my study focuses on gaining an overall understanding of the regulation of marine tourist activities and does not examine LQGLYLGXDO¶VFRPSOLDQFHRUNQRZOHGJH,WZDVKRZHYHUQRWSRVVLEOHWRHQWLUHO\DYRLGWKe risk of respondents adapting their answers. Since I find it difficult to assess whether any responses could be of a sensitive nature, the respondents are kept anonymous to some extent in this essay.89 This is done by not presenting WKHLUQDPHVDQGE\JHQHUDOO\XVLQJ WKHSURQRXQ µKH¶7KHSRVLWLRQVRIJRYHUQPHQWRIILFLDOV are however specified, except when these have expressly wished to be kept anonymous. Finally, it is important to get an understanding of a subject before performing interviews.90 As mentioned in subchapter 1.5.3.2, a large challenge during this study has however been to identify relevant materials on Kenyan environmental law and it has also been difficult to gain prior knowledge of how marine tourist activities are regulated in practice. Since I performed semi-structured interviews and attempted to carefully plan these, I was able to handle some of the challenges that the lack of knowledge entailed. It should however be mentioned that the lack of knowledge affected my possibility to prepare the questions best suited to fulfil the purpose of this essay. 1.5.4.2 National Environment Management Authority Interviews were performed with three respondents at NEMA. The reason for performing interviews at NEMA was due to its role as the authority with main responsibility of environmental regulation under EMCA. The ambition was to identify respondents with knowledge of how EMCA and the regulations under this act regulate marine tourist activities. The interview with Officer Y was arranged through a personal contact at KWS, who believed him to be suited to answer my questions. Officer Y arranged an interview with Officer X, who in his turn arranged a meeting with Officer Z. In Mombasa, I also attempted to perform an interview with someone focused on marine issues, but this was not possible. The interview with Officer Z was, of practical reasons, performed in the form of a shorter informal conversation followed up by an interview via e-mail. The drawback of performing an interview in this manner could be that the interviewer does not have the same interaction with the respondent as during a personal meeting and not the same possibility to ask follow up questions.91 7KH UHDVRQ IRU QRQHWKHOHVV SHUIRUPLQJ WKLV LQWHUYLHZ ZDV GXH WR 2IILFHU =¶V specialization on marine issues and involvement in projects relating to tourism. The questions during the interviews with respondents at NEMA focused on which legal environmental requirements EMCA and the regulations under this act entail in relation to marine tourist activities and how these are enforced. Some questions were of an open character, but most questions were of a more direct and interpretive nature.92 The direct questions, concerning the interpretation of specific provisions, were adjusted over time as I gained more knowledge. Focus was on clarifying aspects which I found uncertain from the legal materials. Identical questions were thus not asked to all three respondents, which is relevant to mention since it results in varied interview structures and responses. 1.5.4.3 Ministry of Tourism An interview was performed with one respondent at MT. The reason for performing this interview was that MT is the authority with responsibility of licensing marine tourist activities under TILA. The interview was arranged through Officer E(M), who had identified a suitable 89 Esaiasson et al, p. 285. 90 Esaiasson et al, p. 285, and Sandgren, p. 43. 91 Esaiasson et al, p. 279-280. 92 Esaiasson et al, p. 291. 14 respondent. It might have been suitable to perform interviews with one or two additional respondents at MT, but this was not possible. The questions during the interview concerned whether the licensing of marine tourist activities under TILA results in legal environmental requirements in relation to marine tourist activities and how these, in that case, would be enforced. Some questions were of an open character and other questions were of a more direct and interpretive nature.93 1.5.4.4 Kenya Wildlife Service Interviews were performed with KWS officers at the local KWS headquarters in Mombasa MNPR and Kisite Mpunguti MNPR. The reason for performing these interviews was that KWS is responsible of enforcing legal environmental requirements in relation to marine tourist activities in Mombasa MNPR and Kisite Mpunguti MNPR. Since I estimated these interviews to be of central importance for the purpose of this study, interviews were performed with five KWS officers in Mombasa MNPR and four KWS officers in Kisite Mpunguti MNPR. In order to identify suitable respondents, the interviews in Mombasa MNPR were arranged through Officer E(M) and Officer B(M), and the interviews in Kisite Mpunguti MNPR were arranged through Officer I(K) and Officer F(K). The questions during the interviews primarily concerned which legal environmental requirements tourists and tourist activity organizers must comply with during marine tourist activities and how these are enforced. Furthermore, the questions concerned whether tourist activity organizers in Mombasa MNPR and Kisite Mpunguti MNPR have own common norms (e.g. codes of conduct) with environmental requirements and how these are enforced. The questions during the interviews were mainly of an open nature, with more specific follow-up questions.94 Almost the same predetermined questions were asked to all respondents, with the exception of Officer E(M) and Officer I(K) who were asked questions based on issues which needed clarification after the interviews with other respondents. The open questions used during the interviews turned out to be an advantage when realizing that the situation on the ground was not as I had expected from the legislations. These questions made it possible to capture unexpected responses and to get an overall picture of the regulation of marine tourist activities, even though the focus of the study and my understanding of the subject changed. Initially, the focus was primarily on identifying legal environmental requirements, but the open questions also made it possible to gain an understanding of the role of other environmental requirements in the areas. 1.5.4.5 Tourist Activity Organizers Interviews were performed with tourist activity organizers in Mombasa MNPR and Kisite Mpunguti MNPR. A purpose of performing these interviews was to get indications of which legal environmental requirements that should be complied with during marine tourist activities, which licenses that contain legal environmental requirements and how legal environmental requirements are enforced. A purpose was also to investigate if tourist activity organizers have own norms (e.g. codes of conduct) with environmental requirements and how these are enforced. I estimated the interviews with these respondents to be of central importance for the purpose of this study. Interviews were therefore performed with four tourist activity organizers in Kisite Mpunguti MNPR and six tourist activity organizers in Mombasa MNPR. The interviews in Kisite Mpunguti MNPR were arranged by Officer F(K), who identified suitable respondents. In Mombasa MNPR, Officer B(M) and Officer D(M) identified suitable 93 Esaiasson et al, p. 290-291. 94 Esaiasson et al, p. 290-291. 15 respondents. Two interviews, with members of MBOA(A) and MBOA(B), were performed as group interviews. The questions during the interviews concerned which legal environmental requirements tourists and tourist activity organizers are required to comply with during marine tourist activities and how these are enforced by the authorities this essay focuses on. The questions also focused on identifying whether tourist activity organizers have own norms with environmental requirements and how these are enforced. Almost the same predetermined questions were asked to all respondents, with additional follow-up questions. The questions during these interviews were mainly of an open nature, similar to those I asked KWS officers. As mentioned in subchapter 1.5.4.4, the advantage of these open questions was that they made it possible to capture unexpected responses and to get an overall picture of the regulation of marine tourist activities, even though the focus of the study and my understanding of the subject changed. 1.5.4.6 Other Respondents Interviews were also performed with a few other respondents. A group interview was done with two respondents from GVI, which is an organization educating tourist activity organizers on for example the codes of conduct for dolphin watching in Kisite Mpunguti MNPR. A group interview was also performed with two respondents from NCBOF, which is an umbrella organization for associations of tourism businesses in Mombasa MNPR. Furthermore, an interviHZZDVGRQHZLWKWKHSHUVRQ KHUHLQDIWHUµ7UDLQHU¶ ZKRKDVRUJDQL]HG workshops with tourist activity organizers in Mombasa MNPR, where codes of conducts for glass-bottom-boat excursions have been developed. I arranged these interviews on my own, after recommendations from respondents that I had previously interviewed. The purpose of these interviews was to gain further insight on how KWS and/or tourist activity organizers regulate marine tourist activities. The interviews were performed as informal conversations around a few predetermined questions. 1.5.5 Perspectives on Law in this Essay Something should also be mentioned about the perspectives on law in this essay. Law can be studied from various perspectives.95 A general division is for example made between an inner perspective, focusing on describing such things as the valid law, and an external perspective, focusing on for instance the effects of legal rules.96 Furthermore, Hydén means that a division could be made between a judge and a user perspective on law.97 When applying a traditional judicial dogmatic methodology, the legal study has a judge perspective.98 The user perspective is what for example lawyers and authority officials, working outside courts, normally use when applying law in their practical work.99 This reminds more of the external than the internal perspective on law according to Hydén, since effects of legal rules are usually considered.100 The methodology used in this essay could be seen as highlighting law from a judge as well as a user perspective. The legal investigation is based on a judicial dogmatic methodology and thus has a judge perspective. The empirical findings give insights on how the legal rules are applied in practice by the authorities and thus have more of a user perspective. The analysis could be viewed as having a judge as well as, to some extent, a user perspective on law. 95 Baier & Svensson, p. 27. 96 Baier & Svensson, p. 21 and 27. 97 Hydén 2002, p. 17. 98 Hydén 2002, p. 15 and 17. 99 Hydén 2002, p. 17. 100 Hydén 2002, p. 17-18. 16 1.6 Critique It has been a challenge for me to perform this study and several aspects of the essay can be criticized. All the difficulties described in subchapters 1.5.3.2 and 1.5.4.1 naturally affect the quality of this essay. In this subchapter, I mention some of the major inadequacies I have noticed. I had difficulties in gaining sufficient knowledge about Kenyan law as well as the regulation of marine tourist activities in practice before and during the minor field study. This resulted in difficulties to plan the study and the theoretical knowledge I had gained before arriving in Kenya was not relevant in order to fulfill the purpose of this essay. The lack of knowledge resulted in a gradual shifting of focus as problems arose and the essay can be criticized for having a too wide scope and an unclear focus. The challenges in gaining sufficient knowledge before and during the minor field study also resulted in difficulties to plan the interviews. The empirical findings therefore have varying quality. Especially the empirical findings in relation to EMCA could be criticized for having gaps. Furthermore, the empirical findings under WMCA could be viewed as unstructured, for example since a clear separation is not made between environmental requirements in legal and other sources. As mentioned above, this was however seldom clear during the interviews either and it is therefore inevitable that this ambiguity is reflected in the essay. Furthermore, since I have primarily been based in Mombasa during the study, the essay contains more empirical material from Mombasa MNPR than Kisite Mpunguti MNPR. As always when using interviews as an information source, the reliability in the empirical findings could also be questioned. The legal investigation of this essay is mainly based on primary legal sources. If relevant case law exists, a drawback would be that this has not been studied. Furthermore, I have only briefly studied policies, since these appear to have a weak standing in Kenyan law and since I have had difficulties in determining which policies that are relevant and accurate. It might have been an advantage to study policies further. Secondary sources have only to a limited extent been of aid when performing the legal investigation. The main focus on primary legal sources can give an incomplete and superficial impression. This also results in that there are substantial and structural gaps in the essay and that many aspects are found uncertain. Another weakness of the legal investigation could be that it is strictly limited to EMCA, WCMA, TILA and TA and thus gives an incomplete picture of the legal regulation of marine tourist activities. In retrospect, I however believe that it might have been better to limit this study to only WCMA, given the practical perspective that is also included in this essay. Such a limitation would also have made a deeper theoretical foundation possible. Finally, even though I find the theories used in this essay suitable to fulfil parts of the HVVD\¶VSXUSRVHRWKHUWKHRULHVFRXOGbe considered to better suit law and culture in Kenya. 1.7 Disposition This chapter is followed by seven chapters. In the Second Chapter, theories used in the essay are presented. These are intended to give background information as well as a basis for parts of the analysis. Chapter Three provides a brief overview on a few basics on Kenyan law, intended to provide a background understanding before describing the legal materials of specific interest for this study. In the Forth to Sixth Chapters, the legal investigations in relation to EMCA, TILA/TA and WCMA, including the regulations under these acts, are presented. The legal investigation in each chapter is followed by a presentation of the empirical findings. The empirical findings in Chapter Four and Five are intended to give indications on how EMCA and TILA, including the regulations under these acts, regulate marine tourist activities in practice. The empirical findings in Chapter Six are intended to give 17 a more in-depth understanding of how marine tourist activities are regulated in practice by KWS and tourist activity organizers in Mombasa MNPR and Kisite Mpunguti MNPR. In Chapter Seven, an analysis is made in order to answer the questions of this essay. The Eighth Chapter presents the conclusions, a few reflections and suggestions for further research. 18 2 Theories This chapter presents the theories used in the essay. The purpose is give background information as well as a basis for parts of the analysis. In the first subchapter, the role of legal environmental requirements and enforcement, in order to achieve environmental goals, is described. This is intended to provide an understanding of why it is of interest to investigate what legal environmental requirements tourists and tourist activity organizers must comply with during marine tourist activities and how these requirements are enforced. The second subchapter is intended to place legal rules in the context of different norms in society. It is also intended to provide a basis for how norms can be defined, categorized and analyzed in relation to each other. 2.1 Legal Environmental Requirements and Enforcement Environmental goals, such as conservation of marine biodiversity or sustainable development, are typically generally expressed and without legal effect in relation to individuals.101 Normally, it is therefore not sufficient to prescribe an environmental goal if this is to be effectively achieved.102 It is also important that legally binding rules ensure that individuals (legal or physical persons), who affect the state of the environment which the goal is intended to protect, behave in consistency with the goal.103 These kinds of legal rules are referred to as legal environmental requirements in this essay. Effective enforcement is also essential in order to achieve environmental goals.104 Legal rules must therefore ensure that individuals can be enforced to comply with legal environmental requirements in practice.105 Examples of enforcement mechanisms are supervision, sanctions and education.106 Figure 1 is intended to illustrate the interconnection between these three parts of environmental law. 101 Christiernsson, p. 78-79, Michanek & Zetterberg, p. 394, and Westerlund, p. 43. 102 Christiernsson, p. 3, 77 and 85, Michanek & Zetterberg, p. 394, and Westerlund, p. 43. 103 Christiernsson, p. 3, 78, 85 and 87, Michanek & Zetterberg, p. 394, and Westerlund, p. 43 and 53-55. Various aspect of the legal system are relevant to consider to evaluate if this is designed in a manner which ensures fulfillment of environmental goals. As mentioned in the limitations, such aspects are however outside the limitation of this essay. See for example Westerlund for more information on this. 104 Westerlund, p. 58-59. 105 Christiernsson, p. 3, Hydén 2002, p. 32, Michanek & Zetterberg, p. 394, and Westerlund, p. 45, 56 and 60. See also Okidi et al, p. 173. 106 Christiernsson, p. 3, Michanek & Zetterberg, p. 394, and Okidi et al, p. 173. Environmental Goal EnforcementEnvironmental Requirement Figure 1. This figure illustrates the relationship between environmental goals, legal environmental requirements and enforcement. 19 2.2 Norms It is not only legal rules that direct human behavior.107 Society consists of various types of norms which affect how people behave and thus influence whether or not individuals will behave in compliance with legal environmental requirements and in line with environmental goals.108 These different types of norms interact and are mutually influencing.109 According to Baier & Svensson, norms have three fundamental features: (A) they are imperative (directives of how to behave); (B) they are socially reproduced (communicated within a social context); and (C) they form the individual's perception of how the surrounding society expects him to behave.110 Furthermore, Baier & Svensson describe that different systems of norms have attributes which differentiate these, for example their origin, creation, form and the sanctions which these are connected with.111 Through these attributes, different systems of norms can be categorised and analysed in relation to each other.112 Baier & Svensson illustrate this by, based on Hydéns reasoning, identifying four attributes of legal rules.113 Legal rules are (1) adopted and prescribed in an authoritative and formal manner.114 This includes a requirement of having been (2) adopted by a sovereignty which the members of the society consider legitimate to adopt common rules or that the rules are enforced upon the members of the society.115 Furthermore, (3) violations of legal rules are connected with predetermined sanctions and these sanctions are (4) decided and executed by bodies that represent the society.116 Hydén describes legal rules as a type of norms which are reinforced and uphold a special position in relation to other norms.117 Legal rules are described as reinforced since individuals can be enforced to comply with these through predetermined sanctions, which are separate from the legal rules.118 Other norms are, according to Hydén, characterized by spontaneous compliance and the sanction for violating these form part of the norm itself.119 Figure 2 is inspired by how Hydén illustrates norms and legal rules in society.120 107 Baier & Svensson, p. 33-73, Hydén 2001, p. 9-10, and Hydén 2002, p. 31. 108 Christiernsson, p. 62 and 64, Hydén 2002, p. 32, and Louka, p. 60. Louka makes the difference between formal and informal rules in international society, see Louka, p. 60-61. 109 Christiernsson, p. 62, and Louka, p. 60. 110 Baier & Svensson, p. 69-72. 111 Baier & Svensson, p. 73. 112 Baier & Svensson, p. 73. 113 Baier & Svensson, p. 73, and Hydén 2001, p. 9-10. 114 Baier & Svensson, p. 73, and Hydén 2001, p. 9. 115 Baier & Svensson, p. 73, Hydén 2001, p. 9, and Hydén 2002, p. 32-33. 116 Baier & Svensson, p. 73, and Hydén 2001, p. 9-10. 117 Hydén 2001, p. 9-10, and Hydén 2002, p. 31-32. Hydén notes that even though legal rules are seen as a type of norm it is important to maintain the distinction between legal rules and other types of norms in society, Hydén 2002, p. 31. 118 Hydén 2002, p. 31-32. 119 Hydén 2002, p. 31-32. 120 See Hydén 2002, p. 33. 20 Figure 2. This figure illustrates the relationship between different norms in society and their role in directing human behavior. Legal rules are a type of norms which are described as reinforced and therefore illustrated at a different level. The ILJXUHLVLQVSLUHGE\+\GpQ¶Villustration of legal rules and norms (see Hydén 2002, p. 33). Legal Rules Norms Society 21 3 Basics on Kenyan Law This chapter is intended to provide a brief overview of a few basics on Kenyan law. First, a picture is given of the Kenyan legal system, its sources of law and their hierarchy. Thereafter, principles on how to interpret written law are described. Finally, the new Kenyan Constitution is presented. 3.1 Legal System, Sources of Law and their Hierarchy The legal systems of the world can be classified into different families.121 A general division is for example made between common law and civil law.122 Since Kenya is a former British colony, its legal system is influenced by British common law.123 Today, the Kenyan legal system however has a growing body of own written and common law.124 The sources of law in the Kenyan legal system, which are relevant to mention in this essay, are in order of precedence: the Constitution; other written law; and common law.125 Written law consists of for example acts of the parliament and subsidiary legislations and, in case of conflict between these, acts of the parliament prevail.126 Subsidiary legislations must be developed under the authority of an act of the parliament and these take the shape of for example regulations, orders, directions and licenses.127 Finally, since this essay focuses on written law, it is of relevance to note that that written law takes precedence over common law. 3.2 Interpretation of Written Law As mentioned in the methodology, the legal investigation of this essay is based on a judge perspective. Relevant principles of how to interpret Kenyan written law can therefore be found in how Kenyan judges tend to interpret this. Jackson explains that a judge aims at discovering the meaning of a statue as this is expressed by its written words.128 Furthermore, he explains that: ³>W@KHVWDWXHPXVWEHUHDGDVDZKROH-XGJHVZLOOLIQHFHVVDU\H[DPLQHWKHWLWOHWKHSUHDPEOHWRDVWDWXHWKH interpretation section (if any), schedules, even marginal notes to sections to determine the meaning of a statue. They can also revert to certain external aids in interpreting a statue, such as dictionaries, reports of Commissions, the law reports, but not to the Parliamentary debates as reported in Hansard. Basically, the words of a statue must be given their ordinary and natural meaning unless this would result in some absurdity´129 Jackson also cites a judge who explains that ³LQ FRQVWUXLQJ HQDFWHG ZRUGV ZH DUH QRW concerned with the policy involved or with the results, injurious or otherwise, which may IROORZIURPJLYLQJHIIHFWWRWKHODQJXDJHXVHG´130 Bogdan describes principles of how British judges tend to interpret British written law, which might also be of relevance to understand how Kenyan written law should be 121 Bogdan, p. 77-82. 122 Bogdan, p. 77-83. The Swedish legal system is based on civil law. 123 See Bogdan, p. 69, 83 and 125-126, Jackson, p. 7-10 and 16-18, and Ojienda & Aloo. 124 See for example Jackson, p. 5-10, 17-18 and 21-22. 125 Judicature Act, sec. 3, and Jackson, p. 4 and 17-18. Other sources of law are for example specified British legislations and African customary law, Judicature Act, sec. 3, and Jackson, p. 15-16. African customary law only applies in civil cases and written law takes precedence over African customary law, Jackson p. 21-22. 126 Jackson, p. 4-6 and 11-12. 127 Jackson, p. 5 and 11-12. 128 Jackson, p. 10 and Hydén 2002, p. 51. 129 Jackson, p. 10. 130 Jackson, p. 10, cites Lord Simon, L.C. in King Emperor v. Benoari Sarma & others (1945) 1 A11 E.R. 210. 22 interpreted.131 He explains that, since British judges view written law as a foreign element of law, they tend to interpret provisions of written law restrictively.132 A general principle is therefore to interpret the words of a statue strictly by their literal meaning. There are however exceptions made from this principle, for example in order to avoid absurdities. He also points out that British judges do not normally use preparatory legislative materials to interpret written law. These materials are not viewed as valid sources of law. Exception can be made if the preparatory legislative materials are needed to identify which phenomenon the statue aimed at regulating.133 Bogdan also mentions that jurisprudential doctrine does not belong to the formal sources of law and has a weak standing in court, even though it can be considered to some extent by British judges.134 3.3 Constitution of Kenya A new Kenyan Constitution entered into force in August 2010.135 In order to ensure the &RQVWLWXWLRQ¶V IXOO LPSOHPHQWDWLRQ.HQ\DQ law is currently undergoing a procedure where existing legislations are being reviewed and new legislations are being developed.136 This is planned to be gradually completed within one to five years time from the effective date.137 The Constitution contains a few aspects which are relevant to mention in this essay. It recognizes the importance respecting the environment and sustaining this for future generations.138 Sustainable development is mentioned as a fundamental principle, which shall form the base of governance in Kenya.139 The principle of sustainable development is therefore binding upon anyone who applies any legislation or who implements any public policy.140 The Constitution also contains several provisions relating to environmental governance, which will be gradually implemented through legislative and other measures.141 The legislations that this essay focuses on existed before the Constitution entered into force and it does not at this stage seem clear how these will be affected in the review procedure.142 131 See Bogdan, p. 92-127, and Jackson, p. 17, for more information. ,WYDULHVZLWKWKHMXGJH¶VSHUVRQDOFKDUDFWHU how the principles are applied, Bogdan, p. 115. 132 Bogdan, p. 113. Normal law is then viewed as common law and the doctrine of equity, Bogdan, p. 113. 133 Bogdan, p. 114-115. 134 Bogdan, p. 118 and 123-124. 135 Constitution, art. 260, 263-264 and Sixth Schedule, and the Constitution of Kenya Review Act, 2008, the New Constitution of Kenya, Promulgation (Constitution, p. 192). 136 Constitution, art 261, Fifth Schedule and Sixth Schedule, sec. 7(1). 137 Constitution, art. 260-261 and Fifth Schedule. See Chapter Eighteen and Sixth Schedule on transitional provisions. 138 Constitution, preamble. 139 Constitution, art. 4(2) and 10(2). The Constitution does not contain a definition of sustainable development. 2WKHUYDOXHVUHFRJQL]HGE\WKH&RQVWLWXWLRQDUHIRUH[DPSOH³VKDULQJDQGGHYROXWLRQRISRZHUWKHUXOHRIODZ GHPRFUDF\DQGSDUWLFLSDWLRQRIWKHSHRSOH´&RQVWLWXWLRQDUW   140 Constitution, art. 10(1). 141 See for example Constitution, art. 22-23, 42, 59-60, 66, 68-70, 72, 162 (2b) and 259-260. See Constitution, Fifth Schedule, for the time schedule. See also Constitution, Sixth Schedule, sec. 19, and the former Constitution of Kenya, sec. 84(6). 142 Constitution, art. 262 and Sixth Schedule, sec. 7(1). Legislations that may be relevant for this essay are scheduled to be finished within four-five years from the effective date, Constitution, art. 260-261 and Fifth Schedule. 23 4 Environmental Management and Co-ordination Act In the first subchapter beneath, the legal investigation in relation to EMCA and the regulations under this act is presented. Focus is on describing provisions that could result in legal environmental requirements in relation to marine tourist activities and legal possibilities to enforce these. In the second subchapter, empirical findings are presented to give indications on how EMCA and the regulations under this act regulate marine tourist activities in practice. 4.1 Environmental Management and Co-ordination Act 4.1.1 General EMCA entered into force in January 2000 and it has the purpose of establishing an institutional and legal framework on environmental management in Kenya.143 It introduced new mechanisms in Kenyan environmental law, such as environmental planning, preventive assessment of activities and requirements to pay the cost of reducing environmental impact.144 The authority with the main responsibility of environmental regulation under EMCA is NEMA.145 Its general purpose is to perform supervision and co-ordination of environmental matters and it has a lead role in the implementation of environmental policies.146 Examples of 1(0$¶V specific functions are to ensure WKDW OHDG DJHQFLHV¶ HQYLURQPHQWDO PDQDJHPHQW efforts are co-ordinated; encourage incorporation of environmental considerations in lead agencies projects, plans and policies; monitor activities¶ environmental impact; and build public awareness on sound environmental management.147 It is important to note that EMCA did not repeal or synchronize earlier existing sectoral legislations relating to the environment.148 Sectoral government agencies therefore still have central roles in implementing Kenyan environmental law and lead agencies are for example given responsibility of SHUIRUPLQJVRPHRI1(0$¶V IXQFWLRQV LQ WKHLU UHVSHFWLYHVHFWRUV.149 The lead agency in relation to marine national parks and reserves is KWS.150 4.1.2 Fundamental Principles A few general principles are viewed as underlying the provisions of EMCA.151 A fundamental SULQFLSOH LV WKDWHYHU\RQH³LQ.HQ\D LVHQWLWOHG WRDFOHDQDQGKHDOWK\HQYLURQPHQW´152 This 143 EMCA, preamble and p. 1, and Okidi et al, p. iii. Regulations can be issued to give full effect to EMCA, see for example EMCA, sec. 147. 144 Okidi et al, p. 3, 143 and 172. 145 EMCA, sec. 7, and Okidi et al, p. 146, 148-DQG1(0$¶VKHDGTXDUWHULVLQ1DLURELDQGLWKDV offices at local level, EMCA, sec. 29(1) and 30. It took more than three years after EMCA was enacted to start setting up the institutions established under EMCA and this is not yet finished, Okidi et al, p. 202. NEMA was established in 2005. 146 EMCA, sec. 9(1), and Okidi et al, p. 146. 147 See EMCA, preamble and sec. 9(2), and Okidi et al, p. 142-143, 146 and 440. For a full outline of the H[DPSOHVRI1(0$¶VIXQFWLRQVVHH(0&$VHF   148 Okidi et al, p. iii-iv, 132, 142 and 146. Before EMCA, the sectoral approach was considered to give Kenyan environmental law a diffuse character, resulting in jurisdictional conflicts and overlaps, including unclear and uncoordinated mandates of government agencies, Okidi et al, p. 142-143. Around 77 Kenyan statues contained environmental provisions, which can be compared to Sweden where 16 statues were replaced by the environmental code (Miljöbalken), Okidi et al, p. 142, and Michanek & Zetterberg, p. 22. A problem is that there are still conflicts and overlaps between sectoral legislations and that there is need to harmonize these with EMCA, Okidi et al, p. iv, x, xix-xx, 138 and 303, and EMCA, sec. 148. 149 Okidi et al, p. 146, 178-179 and 201. 150 EMCA, sec. 2, and Okidi et al, p. 301. See EMCA, sec. 2, for definition of lead agency. See also chapter 6 of this essay. 151 Okidi et al, p. 160. See also EMCA, preamble. 152 EMCA, sec. 3 (1). 24 entitlement, for example, includes being able to visit public areas for recreational purposes, but it is also connected with a duty of taking care of the environment.153 Another essential principle is sustainable development, which includes for instance the precautionary principle, the principle of inter- and intragenerational equity, the polluter pays principle and the principle of public participation in environmental management.154 Sustainable development is GHILQHGDV³GHYHORSPHQWWKDWPHHWVWKHQHHGVRIWKHSUHVHQWJHQHUDWLRQZLWKRXWFRPSURPLVLQJ the ability of future generations to meet their needs by maintaining the carrying capacity of the supporting ecosystemV´155 4.1.3 Project Report and Environmental Impact Assessment License156 Before undertaking certain activities, proponents are required to submit a project report to NEMA.157 This instrument is part of a procedure intended to ensure that NEMA has a sufficient decision-basis when assessing whether to grant an environmental impact assessment license (hereinafter µEIA-license¶).158 The purpose of this procedure is to ensure sustainable development through, for example, predicting possible environmental impacts of proposed activities, evaluating the significance of these impacts and identifying suitable mitigation measures.159 The Second Schedule of EMCA contains a broad specification of activities that require the submission of a project report.160 The Second Schedule, sec. 1, contains a general requirement relating to ³DQ DFWLYLW\ RXW RI FKDUDFWHUZLWK LWV VXUURXQGLQJ´161 The Second Schedule also contains more specified categories, for example, urban development, agriculture, mining, 153 EMCA, sec. 3 (1-2). This duty does not in itself seem to be connected to any sanction, see EMCA, Part XIII. It might however be possible to enforce this duty through court proceedings under EMCA, sec. 3(3)-(5), but that is outside the limitation of this essay. Angwenyi mentions that this duty for example includes refraining from activities which are harmful to the environment, for example by performing proper waste disposal, and to monitor individuals and agencies performance of their duties, Okidi et al, p. 160. 154 EMCA, sec. 3, and Okidi et al, p. 299. There seems to be consensus among Kenyan lawyers that the principles of sustainable development in EMCA, sec. 3, guide not only the High-Court, but also other agencies who implement EMCA. See EMCA, sec. 2, and Okidi et al, p. 160-165, for definitions and explanations of these principles. As mentioned above, it is now clear also from the Constitution that the principle of sustainable development is binding upon anyone who applies any Kenyan legislations, Constitution, art. 4(2) and 10(2). 155 EMCA, sec. 2. See EMCA, sec. 2, for definitions of the other principles of sustainable development. 156 In this subchapter I describe the licensing procedure as I understand it from EMCA, the EIA Regulation and the EIA Guideline. In Okidi et al, p. 166-168, this procedure is described somewhat different. Since only a general reference is made to the EIA Regulation, I am however not able to determine exactly how the description in the book relates to the words of the legislations. I should however point out that I find some of the details of this procedure unclear in the legal texts and that it is possible that I have misunderstood aspects of this procedure. For example, EMCA, sec. 60 and 62-64, refers to evaluation and review report. Evaluation and review report are not further defined in EMCA and these reports are not mentioned in the EIA Regulation or EIA Guideline. The EIA Regulation and EIA Guideline only mention project reports. When reading the legal texts together, I interpret them as that evaluation and review report is synonymous to, or part of, a project report. I therefore only refer to project report in the text. I have not been able to find any preparatory legislative materials to identify which activities this procedure aims at regulating. 157 EIA Guideline, p. 2 and 6. See EIA Guideline, p. 4, for a schematic overview of the procedure. It should be noted that tourist activity organizers who were undertaking marine tourist activities before EMCA entered into force in January 2000 were not required to submit project reports. 158 EIA Guideline, p. 2 and 6, and Okidi et al, p. 166. 159 EIA Guideline, p. 2 and 6. Okidi et al, p. 166-167. Principles underlying this procedure include for example the precautionary principle, the polluter-pays principle and the principle of intra-generational and inter- generational equality, EIA Guideline, p. 6. 160 EMCA, sec. 58(1) and Second Schedule, EIA Guideline, p. 2, and Okidi et al, p. 301. 161 EMCA, Second Schedule, sec. 1. I find it unclear whether the Second Schedule, sec. 1, applies in addition to other sections of the Second Schedule, or if sec. 1 and other sections are to be applied separately. The description of the activities in the Second Schedule in Okidi et al, p. 150 and 301, gives the impression that the sections can be applied separately. 25 waste disposal, processing and manufacturing industries.162 A category in the Second Schedule is also ³ Q DWXUDOFRQVHUYDWLRQDUHDV´ZKLFK LQFOXGHV³FRPPHUFLDOH[SORLWDWLRQRI QDWXUDOIDXQDDQGIORUD´163 There is no definition of commercial exploitation in EMCA or the regulations under this act. In the Concise Oxford Dictionary, commercial is defined as ³KDYLQJSURILWDVDSULPDU\DLPUDWKHUWKDQDUWLVWLFHWFYDOXH´DQGH[SORLWLVGHILQHGDV³PDNH XVHRI DUHVRXUFHHWF GHULYHEHQHILWIURP´164 According to the Environment Impact Assessment Guidelines and Administrative Procedures165 KHUHLQDIWHUµEIA Guideline¶ , it is the significance of a project¶s impacts that is decisive on whether or not it requires the submission of a project report.166 Among the factors that are relevant to consider when dHWHUPLQLQJ WKH VLJQLILFDQFH DUH WKH DIIHFWHG DUHD¶V VHQVLWLYLW\ ³the possibility of having individually insignificant but cumulatively significant impacts; whether the proposed activity affects protected areas, endangered or threatened species and habitaWV´167 The EIA GXLGHOLQHDOVRPHQWLRQVWKDWD³K\EULGRIDSSURDFKHV´IRU example including lists and thresholds, are used to determine whether a project report is required.168 If a project report is required, this shall be submitted to NEMA in the form prescribed in the Environmental (Impact citation. Assessment and Audit) Regulations, 2003 (hereinafter µ(,$5HJXODWLRQ¶ .169 It shall include a description of the proposed project, for example, its location, possible environmental impacts and measures that will be taken to mitigate these.170 Special consideration should be taken to certain factors, such as the effects on fragile ecosystems, biodiversity, oceans and wetlands.171 When receiving a complete project report, NEMA communicates this to different bodies, for example relevant lead agencies.172 These are thus given opportunity to give comments on the proposed activity.173 If NEMA finds that the proposed activity is not likely to have any significant negative impact on the environment, or that the mitigation measures provided for in the project report are sufficient, an EIA-license may be issued.174 In the EIA-license, NEMA has possibility to include such conditions that it finds suitable and necessary to ensure sustainable development.175 If the proponent does not hear anything from NEMA within nine months 162 EMCA, Second Schedule. 163 EMCA, Second Schedule, sec. 12. 164 Thompson, p. 265 and 475. 165 Republic of Kenya, National Environmental Management Authority, Draft, Environmental Management and Coordination Act (No 8 of 1999) - Environment Impact Assessment Guidelines and Administrative Procedures, November 2002. 166 EIA Guideline, p. 7. 167 EIA Guideline, p. 7. 168 EIA Guideline, p. 7. See EIA Guideline, p. 7, for more information about the screening process. 169 See EMCA, sec. 58(1). See EIA Regulation, sec. 6-7, First Schedule, Form 1, and Second Schedule and EIA Guideline, p. 8 for further details on the contents in a project report. Unfortunately I have not been able to identify the First Schedule of the EIA Regulation. It would have been interesting to see this to get a better picture of what is included in the application form. 170 EIA Regulation, sec. 7(1), and EIA Guideline, p. 8. It can be noted that most of the prescribed contents in the project report is related to larger development activities, such as building. 171 EIA Regulation, sec. 7(2) and Second Schedule. 172 EMCA, sec. 60, and EIA Regulation, sec. 9. See EIA Regulation, sec. 2, for definition of lead agency. 173 EIA Regulation, sec. 9. 174 EIA Regulation, sec. 10(2) and First Schedule, Form 3, and EIA Guideline, p. 3. Unfortunately I have not been able to find the First Schedule. It would have been interesting to see this to get a better picture of what is included in the form for the license. 175 EMCA, sec. 63, EIA Regulation, sec. 10(2), and EIA Guideline, p. 4 and 9. As mentioned above EMCA, sec. 63, refers to review or evaluation report, which I interpret as synonymous to, or part of, a project report. See EIA Guideline, p. 4, for an overview of the procedure, where it is clear that conditions can be included in the EIA- license at this stage. 26 from the submission of a project report to NEMA, he can start the activity without an EIA- license.176 If an activity is not conducted in adherence with an EIA-license, NEMA can suspend or cancel the EIA-licence for up to twenty-four months.177 This can also be done if there are major changes in the project or unforeseen environmental threats.178 The activity may then not be resumed until a new EIA-licence has been issued.179 NEMA also has power to require the holder of an EIA-license to conduct a fresh study or submit a new report in case of major changes in the project or unforeseen environmental threats.180 An offence is committed if someone starts an activity without submitting a project report when this is required under EMCA or the EIA Regulation.181 Furthermore, an offence is committed if someone undertakes an activity without approval from NEMA, under the EIA Regulation, or if someone does not adhere to the conditions in an EIA-licence.182 The sanction for the offence prescribed in EMCA is a fine of up to 2 000 000 Kenyan Shillings (hereinafter µKSh¶ and/or imprisonment for up to two years.183 EIA Regulation, sec. 45, refers to the sanction prescribed under EMCA. This could be the sanction prescribed in EMCA, sec. 138, outlined above, or the sanction prescribed in EMCA, sec. 144. In the latter case, the sanction would be a fine of up to 350 000 KSh and/or imprisonment for up to one and a half years.184 There is no specification of which sanction to apply when the same offence is prescribed in EMCA as well as the EIA Regulation, for example when undertaking an activity without submitting a project report when required.185 4.1.4 Strategic Environmental Plan The EIA Regulation requires licensing authorities, under any Kenyan law, to make sure that a strategic environmental plan, including mitigation measures, has been developed and DSSURYHGE\1(0$EHIRUHLVVXLQJDFRPPHUFLDOOLFHQVH³IRUDQ\PLFURSURMHFWDFWLYLW\OLNHO\ WR KDYH FXPXODWLYH VLJQLILFDQW QHJDWLYH HQYLURQPHQWDO LPSDFW´186 Neither EMCA nor the regulations under this act contain any definition of micro project activity or cumulative significant negative environmental impact and neither any other provision on strategic environmental plan is.187 176 EMCA, sec. 58(8-9). 177 EMCA, sec. 67(1), and EIA Regulation, sec. 28. NEMA, in consultation with relevant lead agency, is required to take immediate remedial action if an activity is found to be conducted in contravention with an EIA- license, EIA Regulation, sec. 40(3). 178 EIA Regulation, sec. 28(2). 179 EMCA, sec. 67(2). 180 EMCA, sec. 64. 181 EMCA, sec. 58, 138, and EIA Regulation, sec. 7-8 and 45. 182 EIA Regulation, sec. 45(1) and (2)(d). 183 EMCA, sec. 138. 184 EMCA, sec. 144. 185 See EIA Regulation, sec. 45(2), and EMCA, sec. 138 and 144. 186 EIA Regulation, sec. 4 (3). 187 See EIA Regulation, sec. 42-43, and EIA Guideline, p. 23-26, on strategic environmental assessment. It is possible that it is this is what EIA Regulation, sec 4(3), refers to, since there are no other provisions on strategic environmental plan. The EIA Guideline, p. 2, refers to EMCA, sec. 37-41, on the requirement of performing a strategic environmental assessment, but this contains provisions on the national environmental action plan, which does not seem to be what EIA Regulation, sec 4(3), refers to. 27 4.1.5 Offences Relating to Pollution EMCA and the regulations under this act contain different provisions prescribing offences relating to pollution. Since these provisions appear to have similar content, three examples of offences are described beneath.188 An offence is committed if someone disposes waste in a public place, for example a recreational area, otherwise than in designated waste receptacles.189 The sanction is a fine of up to 350 000 KSh and/or imprisonment for up to one and a half year.190 An offence is also committed if someone discharges waste in a manner which causes pollution to the environment.191 The sanction is a fine of up to 1 000 000 KSh and/or imprisonment for up to two years.192 Waste is defined as any matter discharged in a manner likely to cause a change in the environment.193 ThH WHUP SROOXWLRQ LQFOXGHV ³DQ\ GLUHFW RU LQGLUHFW DOWHUDWLRQ RI WKH physical, thermal, chemical, biological, or radio-active properties of any part of the environment by discharging, emitting or depositing wastes so as to [...] cause a condition which is hazardous or potentially hazardous to [...] animals, birds, wildlife, fish or aquatic life, RUWRSODQWV´194 An offence is also committed if someone discharges any hazardous substance or oil, for example diesel or fuel oil, into any water or other part of the environment contrary to EMCA or the regulations under this act.195 Hazardous substance includes, for example, waste likely to be harmful to the environment and discharge includes emptying, escaping, spilling, leaking and disposing.196 The sanction is a fine of up to 350 000 KSh and/or imprisonment for up to one and a half years.197 The provision codifying this offence also prescribes other requirements and sanctions. In addition to fine or imprisonment, the convicted person has to pay the costs of cleaning up the polluted environment.198 The owner or operator of a motor vehicle or vessel from where the discharge derives also has to take immediate measures to 188 There are many similar offences relating to pollution prescribed in EMCA and the regulations under this act with different sanctions. I find the difference between some of these offences unclear, at least in relation to marine tourist activities. Since I do not go into detail on how to handle conflicting provisions under Kenyan law in this essay, I refer to the offences I find most relevant in the text. There are similar offences to those prescribed in EMCA, sec. 93(1), and Environmental Management and Co-ordination (Prevention of Pollution in Costal =RQH DQG RWKHU 6HJPHQWV RI WKH (QYLURQPHQW  5HJXODWLRQV  KHUHLQDIWHU µ3ROOXWLRQ 3UHYHQWLRQ 5HJXODWLRQ¶ VHF  DQGSUHVFULEHGLQEMCA, sec. 55 (5) and 142. Water Quality Regulation, sec. 24 and 27, prescribing an offence for discharging pollutants into water meant for any use, for example wildlife. I find it unclear whether this applies to marine waters. 189 Environmental Management and Co-RUGLQDWLRQ :DVWH0DQDJHPHQW5HJXODWLRQV  KHUHLQDIWHUµ:DVWH Management 5HJXODWLRQ¶ VHF  DQG 190 EMCA, sec. 144, and Waste Management Regulation, sec. 42. 191 EMCA, sec. 87(1). See EMCA, sec. 2, for definitions of pollution and environment. 192 EMCA, sec. 87(6). 193 EMCA, sec. 2. 194 EMCA, sec. 2. Okidi is critical against the definition of pollution, since this requires alteration of the environment, which means that the pollution is dealt with afterwards, instead of at the preventive level. He compares this with the definition in UNCLOS, art.1(4), which places more emphasis on the action itself. See Okidi et al, p. 455-456. 195 EMCA, sec. 93(1), and Pollution Prevention Regulation, sec. 3(1) and 9. The Pollution Prevention Regulation prescribes how to manage, for example, waste and oil at ships. The requirements include, for example, keeping an oil record book in accordance with the Merchant Shipping Act, having a certificate from a port waste reception facility and off-loading oil and waste at the port in Mombasa, see sec. 3 and 5-6. For clarification, it can be mentioned that the Pollution Prevention Regulation is enforced by NEMA, even though it is similar to the functions of the Kenya Maritime Authority under the Maritimes Authority Act, Okidi et al, p. 473. 196 EMCA, sec. 2, and Pollution Prevention Regulation, sec. 2. 197 EMCA, sec. 93(2) and 144, and Pollution Prevention Regulation, sec. 9. 198 EMCA, sec. 93(3). 28 minimize the environmental impact, notify NEMA and follow any of its directions.199 The court shall take these mitigation measures into account when handling a case relating to an offence under this provision.200 If the person does not take such mitigation measures, NEMA can seize the vessel or motor vehicle.201 NEMA then has possibility to use this to meet the costs of cleaning up the polluted environment, in case the person does not take mitigation measures within reasonable time.202 4.1.6 Improvement Notice and Restoration Order NEMA has possibility to issue an improvement notice or restoration order, for example, to ensure compliance with legal requirements in EMCA and the regulations under this act.203 An improvement notice can be issued by an environmental inspector, after consent from the Director General of NEMA, for example to require the operator or owner of a vessel, motor vehicle or other enterprise to stop any activities with deleterious environmental impacts and to take suitable measures to minimize these.204 NEMA can issue an environmental restoration order to one or more persons, ³VXEMHFW WR any other provisLRQV RI >(0&$@´ in relation to any matter relating to environmental management.205 :KHQXVLQJ WKLV SRZHU1(0$VKDOO ³EH JXLGHGE\ WKH SULQFLSOHV RI JRRG HQYLURQPHQWDO PDQDJHPHQW LQ DFFRUGDQFH ZLWK WKH SURYLVLRQV RI >(0&$@´206 EMCA contains a definition of good environmental practice, as practice which is in accordance with EMCA or any other relevant law.207 The restoration order can require a person not to undertake an activity likely to harm the environment, to restore the environment as close as possible to its state before the activity was undertaken or to pay a fee equal to the cost of restoring the environment.208 The restoration order should clearly specify what the person is required to do and can include mandatory conditions.209 For example, the person can be required to take measures to prevent or stop pollution or to remove waste from the sea.210 An offence is committed if someone contravenes an environmental restoration order or improvement notice.211 The sanction for violating an improvement notice is a fine of up to 500 000 KSh and/or imprisonment for up to two years and the sanction for contravening an 199 EMCA, sec. 93(4). If traces of oil are found in the water near a ship, NEMA is obliged to immediately perform an investigation on whether the provisions of the Pollution Prevention Regulation has been infringed, Pollution Prevention Regulation, sec. 8. 200 EMCA, sec. 93(7). 201 EMCA, sec. 93(5). 202 EMCA, sec. 93(6). 203 Okidi et al, p. 170-171. 204 EMCA, sec. 117(3)(g), and the Environmental Management and Co-ordination (Wetlands, River Banks, Lake 6KRUHVDQG6HD6KRUH0DQDJHPHQW 5HJXODWLRQ KHUHLQDIWHUµ:HWODQGV5HJXODWLRQ¶ VHF. See EMCA, sec. 117(f), on the possibility of immediately closing an undertaking polluting the environment. 205 EMCA, sec. 108 and 109, and Okidi et al, p. 170. See EMCA, sec. 108-110, for details on environmental restoration orders. 206 EMCA, sec. 108(5). Such an order can for example be issued to anyone responsible of environmental degradation, Okidi et al, p. 170. It does however not seem necessary that the person has caused environmental degradation according to EMCA. 207 EMCA, sec. 2. EMCA does not contain any other provision relating to good environmental management and I therefore presume that it is synonymous to good environmental practice. 208 EMCA, sec. 108(2). See EMCA, sec. 108(4), for examples of what the order can include. 209 EMCA, sec. 108(2)-(4), 109(1)(4)-(5) and 143, and Okidi et al, p. 170. See EMCA, sec. 108(4), for examples of requirements that can be imposed. See EMCA, sec. 109(1), for specifications of what the restoration order should include. 210 EMCA, sec. 108(4). 211 EMCA, sec. 137(h) and 143(a). 29 environmental restoration order is a fine of up to 500 000 KSh and/or imprisonment for up to one year.212 4.1.7 Additional Orders in Relation to an Offence The court handling a case where an offence under EMCA or the regulations under this act has been committed can issue orders, in addition to the sanctions outlined above.213 It can direct any license issued under EMCA, relating to the offence, to be cancelled.214 If the court is satisfied that an offence has been committed, it can also, whether or not someone is convicted, order that anything relating to the offence is forfeited to the state.215 The court can also order the convicted person to restore the environment, at his own cost, to as close as possible to its state before the offence.216 4.1.8 Supervision EMCA and the regulations under this act contain various provisions on supervision and monitoring, of which the following seems relevant to mention. NEMA, in cooperation with lead agencies, has responsibility to monitor the performance of activities to determine their effects on the environment.217 Monitoring can, for example, be done to investigate whether the activities are performed in adherence with legal environmental requirements.218 Within NEMA, environmental inspectors have responsibility of supervising that activities are performed in compliance with environmental requirements in EMCA and the regulations under this act.219 They have different powers to perform their duties, for example the following.220 An environmental inspector can enter any land in order to perform monitoring of the effects of activities carried out there.221 He can enter any land, vessel or motor vehicle in order to investigate whether EMCA is complied with.222 He can take samples of any substances that EMCA relates to.223 He can also require licenses and other documents, under any legislation relating to the environment, to be produced.224 Furthermore, he can seize anything believed to be related to the commission of an offence under EMCA or the regulations under this act.225 He can also, with the assistance of a police officer, arrest someone suspected of an offence under EMCA.226 Furthermore, the environmental inspector, 212 EMCA, sec. 137 and 143. 213 EMCA, sec. 146. 214 EMCA, sec. 146(3). 215 EMCA, sec. 146 (1-2). 216 EMCA, 146(4). The court also has possibility to issue an environmental restoration order, EMCA, sec 146 (5) and EMCA, sec. 111. This however only seems possible in court proceedings brought by individuals, why it seems to be outside the limitation of this essay, Okidi et al, p. 170. 217 EMCA, sec. 69(1). See also EIA Regulation, sec. 40. Monitoring does not seem to be limited to projects that have undergone an environmental impact assessment, see EMCA, sec. 69 and EIA Regulation, sec, 40. The significance of the environmental impacts however affect the frequency of the monitoring, see EIA Guideline, p. 21. See EIA Regulation, sec. 40 and EIA Guideline, p. 21-22, for more details on monitoring. 218 EIA Guideline, p. 21, and Okidi et al, p. 171. If a lead agency has monitored that an activity is performed in compliance with an EIA-license, a report of this should be submitted to NEMA, EIA Regulation, sec. 40-41. See EIA Regulation, sec. 41, for details on the contents of the report. 219 EMCA, sec. 69, 109 and 117, and Okidi et al, p. 171 and 301. 220 See EMCA, sec. 117(3) and 118, for a details on the conditions for using the different powers. 221 EMCA, 69(2). 222 EMCA, sec. 117(3)(a). See also EMCA, sec. 69(2), and EIA Regulation, sec. 38 and 41(2). 223 EMCA, sec. 117(3)(a) and (c). 224 EMCA, sec. 117(3)(b). 225 EMCA, sec. 117(3)(e). 226 EMCA, sec. 117(3)(h). 30 under the directions of the Attorney-General, has possibility to prosecute a person suspected for an offence under EMCA.227 Environmental inspectors also have power to inspect whether activities are harmful to the environment and use evidence from such inspections when issuing an environmental restoration order.228 The committee PCC, within NEMA, also has a role in enforcing environmental requirements.229 It is intended to function as an environmental ombudsman, to which members of the society can make complaints relating to the state of the environment.230 It can also undertake investigations at its own incentive to inquire cases of environmental degradation.231 $ UHSRUW RI 3&&¶V FRQFOXVLRQV DQG UHFRPPHQGDWLRQV LV VXEPLWWHG WR WKH 1DWLRQDO (QYLURQPHQW&RXQFLO KHUHLQDIWHUµ1(&¶ ZKLFKLQLWVWXUn can direct NEMA to take action if needed.232 4.2 Empirical Findings233 4.2.1 Project Report and Environmental Impact Assessment License According to Officer Y, if a tourist activity organizer wants to operate marine tourist activities, such as jet-skiing and/or water-skiing, within a marine national park and reserve, the first step would be to submit a project report to NEMA.234 When assessing the project report, NEMA applies an ecosystem approach, according to Officer Y. NEMA then attempts to look at the larger picture and at the cumulative impact of tourism activities within an area, instead of only assessing the impact of single activities. In case a tourist activity organizer wants to operate for example jet-skis, NEMA would compare the number of jet-skis in the marine area with the carrying capacity of that area. If the area only has capacity to carry five jet skis, NEMA should not approve ten. He also explains that KWS, as a lead agency in relation to marine national parks and reserves, is involved to provide comments during the application procedure for an EIA-license. He does however not know if any marine tourist activities have EIA-licenses at the moment. According to Officer Z, it has not been investigated whether a project report is required to be submitted by someone who wants to start undertaking marine tourist activities within a marine national park and reserve. Officer X says that NEMA would only consider requiring a project report for marine tourist activities if it is advised to do so by KWS or MT. He has never seen a project report for this kind of activities. He confirms that NEMA applies an ecosystem approach when determining the environmental impact of proposed activities. He mentions that it is difficult to specify how large the environmental impact has to be in order to require the submission of a project report. Proponents of marine tourist activities are not required to submit this. Officer ; DOVR H[SODLQV WKDW µFRPPHUFLDOO\ H[SORLWLQJ IORUD DQG IDXQD¶ LQ WKH 6HFRQG 6FKHGXOH RI 227 EMCA, sec. 118, and Okidi et al, p. 171. 228 EMCA, sec. 109(2). 229 Okidi et al, p. 154. 230 EMCA, sec. 31(1) and 32-33, and Okidi et al, p. 154, 191 and 205. 231 EMCA, sec. 31(1) and 32-33. 232 EMCA, sec. 4-5 and 32, and Okidi et al, p. 143, 145 and 154. NEC is responsible of formulating goals, policies and priorities for environmental management, EMCA, sec. 4(1) and 5. 233 This subchapter is primarily based on interviews with: Officer X, NEMA, Nairobi; Officer Y, Senior Environmental Education Information & Public Participation Officer, NEMA, Mombasa; and Officer Z, Principal Officer, Coastal, Marine and Wetlands, NEMA, Nairobi. See Appendix 1 for details on all respondents. 234 I made a mistake during this interview and mentioned jet-skis, water skis and boating as examples. The answer might therefore be influenced by this, even though I asked the respondent a couple of times to make sure I did not misunderstand. 31 EMCA, includes activities such as taking material samples of viruses and enzymes. It does probably not include any kind of marine tourist activities. Finally, none of the KWS officers or tourist activity organizers interviewed in Mombasa MNPR and Kisite Mpunguti MNPR mention that an EIA-license is required in order to undertake any kind of marine tourist activities. Officer E(M) is certain that tourist activity organizers are not required to submit a project report and that they do not have EIA-licenses. 4.2.2 Strategic Environmental Plan Officer Z and Officer Y mention that a strategic environmental plan can be relevant in relation to marine tourist activities taking place within sensitive areas such as coral reefs. Officer Y explains that no strategic environmental plan has been developed for any coastal area this far. NEMA has however given advice to develop strategic environmental plans to assess the number of activities that can be take place in some coastal areas. NEMA has for example proposed development of such a plan in Diani, where many tourism activities take place.235 4.2.3 Enforcement Officer Y explains that NEMA primarily is involved when environmental issues are cross cutting and there is no definitive lead agency. When there is a clear lead agency, NEMA does not usually interfere. It is therefore primarily KWS who is responsible of supervising marine tourist activities taking place within marine national parks and reserves. He says that, if an activity has an EIA-license, NEMA can occasionally monitor that this is conducted in compliance with the conditions in the license. If NEMA realizes that there are unforeseen impacts on the environment, an improvement notice can be issued or the conditions of the EIA-license can be varied. It is however primarily KWS which is supposed to ensure that 1(0$¶V DSSURYDOV DUH HQIRUFHG LQ UHODWLRQ WR DFWLYLWLHV ZLWKLQ PDULQH QDWLRQDO SDUNV DQG reserves. Officer Y also mentions WKDW1(0$¶V HQYLURQPHQWDO LQVSHFWRUV RFFDVLRQDOO\ FDQ visit areas for inspection. A problem is however lack of capacity, since there are very few environmental inspectors. The inspectors therefore tend to be more reactive and only perform inspections after complaints. He says that ³the task is huge, so their impact cannot be felt soon. It takes time, bHFDXVHWKHUHDUHDORWRIFKDOOHQJHVRXWWKHUH´ Officer Z says that EMCA and the regulations under this act primarily regulate issues of pollution in relation to marine tourist activities. Compliance with these environmental requirements should be ensured by NEMA, through supervision and prosecution. He does however not WKLQN WKDW WKLV LV ZRUNLQJ VDWLVI\LQJ 7KH ³SRRU VXUYHLOODQFH DQG WHGLRXV SURVHFXWLRQ SURFHGXUHV´ UHVXOW LQ D ULVN RI KDUPLQJ WKH HQYLURQPHQW 6LQFH HQIRUFHPHQW LV H[SHQVLYH³DGKHUHQFHWR WKHUHJXODWRU\UHTXLUHPHQWVLVODUJHO\YROXQWDU\DQGQRQSXQLWLYH´ The respondents from NEMA also mention that NEMA works through different incentives to raise awareness on environmental issues and promote environmental consideration in the tourism sector. This is done in collaboration with various stakeholders, for example KWS and tourist activity organizers. Officer Z for example mentions that tourist activity organizers were involved in a demonstration project in Mombasa MNPR under the proposed integrated coastal zone management plan. Officer Y and Officer Z think that education and awareness rising is important to ensure compliance with legal environmental requirements. KWS officers and tourist activity organizers interviewed in Kisite Mpunguti MNPR and Mombasa MNPR mention that it is primarily KWS which is the government agency supervising the performance of marine tourist activities in these areas. 235 Diani is situated on the south coast of Kenya, between Mombasa MNPR and Kisite Mpunguti MNPR. 32 5 Tourist Industry Licensing Act and Tourism Act TILA is the tourism legislation currently in force which regulates marine tourist activities. This is now in the process of being replaced by the recently assented TA. In order to illustrate the changes in progress, this chapter contains a description of TILA as well as TA. In the first two subchapters beneath, the legal investigations in relation to TILA, including the regulation under this act, and TA are presented. Focus is on describing provisions that could result in legal environmental requirements in relation to marine tourist activities and legal possibilities to enforce these. In the third subchapter, empirical findings are presented to give indications on how TILA and the regulation under this act regulate marine tourist activities in practice. 5.1 Tourist Industry Licensing Act 5.1.1 General TILA was adopted in 1968 and has the objective of regulating the tourism sector in order to support its development and well-being.236 The kind of tourism businesses that are regulated by this act are specified in three classes.237 Relevant to mention in this context is that water sports and boat excursions (Class A) as well as local traditional boat operators and tour guides (Class C) are included.238 The regulation that has been issued under TILA is the Tourist ,QGXVWU\/LFHQVLQJ5HJXODWLRQV KHUHLQDIWHUµ7,/5¶ 239 5.1.2 Tourism License A tourism license is required to carry out the marine tourist activities specified above.240 Such a licence is obtained through an application to the licensing officer at MT.241 The application shall be made in the form prescribed in TILR and include, among other things, a description of the type of tourism business the person wants to undertake.242 The tourism license application shall also be supplemented by the information the licensing officer reasonably can require.243 MT has published guidelines outlining the documents that are generally required for different kinds of tourism licenses. This includes for example tour itineraries; certificate of good conduct; professional certificates; coxswain certificate; and insurance cover.244 During the performance of his functions under TILA, the licensing officer is to be guided by the SURPRWLRQRI³WKHZHOO-EHLQJDQGGHYHORSPHQWRI WKH WRXULVW LQGXVWU\DVDZKROH´245 When deciding upon a tourism license application, he has ³SRZHUDWKLVGLVFUHWLRQWRLVVue a licence or to refuse to issue a licence, or to vary or to refuse to vary a licence, and may in a licence impose such conditions as he thinks desirable in the interests of the tourist industry as DZKROH´246 TILR includes a couple of specified considerations to be made by the licensing 236 TILA, preamble. 237 TILA, sec. 2 and First Schedule. 238 TILA, First Schedule. 239 Regulations can be issued to ensure better carrying out of TILA, for example to specify different forms of licenses and conditions for issuing or cancelling licences, TILA, sec. 12. 240 TILA, sec. 2-DQG)LUVW6FKHGXOH6HH7,/$VHF  RQZKDWµFDUU\LQJRXWDQHQWHUSULVH¶FDQLQFOXGH$ licensee may undertake all the kinds of tourism businesses that are included in the class (A-C) which he has obtained a tourism license for, TILA, First Schedule. 241 TILA, sec. 4(1), TILR, sec. 2 and Schedule, Form 1, and MT, Licensing in the Tourism Sector, p. 4. 242 TILA, sec. 4(1), and TILR, Schedule, Form 1. 243 TILA, sec. 4(1). 244 MT, Licensing in the Tourism Sector, p. 7, and MT, Tourism License Requirements, p. 2-4. 245 TILA, sec. 4(3). 246 TILA, sec. 4(2). 33 officer, which could be of relevance from an environmental perspective. These are that tourism licenses only should be issued for designated areas.247 It should also be mentioned that the Minister is empowered to give a licensing officer ³GLUHFWLRQVRIDJHQHUDORUVSHFLDOFKDUDFWHUDVWRWKHH[HUFLVHDQGSHUIRUPDQFHRIKLVSRZHUV and duties under [TILA] which he may consider reasonable in the interests of the proper regulation of the tourist industry´248 The licensing officer is bound to follow such directions.249 When a licensing officer grants a tourism license it shall be issued in the form prescribed in TILR.250 The conditions specified in the tourism license form concern such things as reporting change of prices, cases of inMXULHV RQ WRXULVWV DQG GLVUXSWLRQ LQ D WRXULVW¶V WRXU itinerary.251 The only prescribed condition that might have relevance from a perspective of environmental protection is that the tourism license has to be granted for a specified area.252 However, as mentioned above, the licensing officer also seems free to impose other conditions in the tourism license which he considers desirable in the interests of the tourism industry.253 A licensed tourist activity has to be conducted in adherence with the conditions in the tourism license.254 The licensing officer can, at his own incentive, vary or cancel a tourism license for a good cause.255 Anyone who carries out a regulated tourism enterprise without a tourism license or who does not comply with its conditions, commits an offence.256 The sanction is a fine of up to 10 000 KSh and/or imprisonment for up to one year.257 5.1.3 Supervision Licensing officers at MT, persons authorised by the Minister and police officers have powers to supervise tourism businesses compliance with TILA and TILR.258 They can stop and seize vessels and other vehicles in order to search for evidence of an offence.259 They can enter and inspect premises where a regulated tourism business is suspected to take place and, within those premises, examine or seize documents and require information from persons engaged in the enterprise.260 They can also, in writing, require a person to hand over documents that seem to relate to a regulated tourism business.261 247 TILR, sec. 4. 248 TILA, sec. 7(2). 249 TILA, sec. 7(2). It would be interesting to know if such a direction would be valid under the new Constitution, since ³VKDULQJDQGGHYROXWLRQRISRZHU´LVDgovernance principle to be followed, Constitution, art.    DQG    -DFNVRQ PHDQV WKDW WKLV OLQN EHWZHHQ WKH OHJLVODWXUH DQG WKH H[HFXWLYH LV ³HVVHQWLDO IRU WKH HIIHFWLYHDGPLQLVWUDWLRQRIJRYHUQPHQWVHUYLFHV´-DFNVRQ p. 60. 250 TILR, sec. 3 - 4 and Schedule, Form 2. The license is personalized and valid one year, TILA, sec. 6(1)-(2). 251 See TILR, Schedule, Form 2. 252 TILR, sec. 4 and Schedule, Form 2. 253 See TILA, sec. 4(2). 254 TILA, sec. 2-3. 255 TILA, sec. 5(1) and 6(3). This can also be done after application by the licensee, TILA, sec. 5(1)(a).A cancelled license has to be returned to the licensing officer, TILA, sec. 6(3). 256 TILA, sec. 3. 257 TILR, sec. 3(2). 258 TILA, sec. 8. For details on the conditions for using the different powers, see TILA, sec. 8. See also TILA, sec. 5(1)(b). 259 TILA, sec. 8(1)(a). 260 TILA, sec. 8(1)(b)-(c) and 8(2). 261 TILA, sec. 8(1)(d). 34 5.2 Tourism Act 5.2.1 General TA was assented in September 2011.262 This act will enter into force when noticed in the Gazette and repeal TILA and three other tourism related legislations.263 TA consists of a comprehensive regulatory framework on tourism with the objective of promoting ³GHYHORSPHQW PDQDJHPHQW PDUNeting and regulation of sustainable tourism and tourism- UHODWHGDFWLYLWLHVDQGVHUYLFHV´264 It will be possible to supplement this act by regulations, for example to specify how tourism activities are to be regulated.265 TA will establish a new structure of institutions within the tourism sector. Most relevant to mention in this context is TRA.266 Examples of the functions TRA will have are to regulate tourism activities in conformity with the national tourism strategy and to develop measures for sustainable tourism.267 According to TA, different instruments will be developed to guide tourism development in Kenya.268 For example, a national tourism strategy will be developed. The objective of this strategy will be to guide the marketing, management, development and regulation of the tourism sector.269 Anything the Minister considers necessary to promote sustainable tourism in Kenya ZLOO EH SRVVLEOH WR LQFOXGH LQ WKH VWUDWHJ\ IRU H[DPSOH ³VWDQGDUGV IRU WRXULVP DUHD GHYHORSPHQW SODQV´ DQG ³DGDSWDWLRQ DQG PLWLJDWLRQ Peasures to avert adverse impacts of FOLPDWH FKDQJH RQ WRXULVP´270 $ 7RXULVP 5HVHDUFK ,QVWLWXWH KHUHLQDIWHU µ75,¶  ZLOO IRU example: determine carrying capacities, as well as conservation needs and priorities, of tourism destinations; provide information for tourism development area plans; and gather information about sustainable tourism.271 5.2.2 Fundamental Principles Sustainable tourism is a concept referred to in several provisions of TA.272 This is defined as ³WRXULVPGHYHORSPHQWWKDWPHHWVWKHQHHGVRISresent visitors and hosts while protecting and HQKDQFLQJ RSSRUWXQLW\ IRU WKH IXWXUH´273 TA also contains a definition of ecotourism as ³UHVSRQVLEOH WUDYHO WR QDWXUDO DUHDV WR YLHZ WKH IORUD DQG IDXQD ZLWKRXW GLVWXUEDQFH WR WKH economical, ecological and culWXUDOVWDWXVRIWKHDUHDV´274 This concept is however not further mentioned in the legislation. 262 TA, p. 1. 263 See TA, sec. 1, 124, and Tenth Schedule. TA, sec. 124, refers to the Twelfth Schedule, but since this does not exist, I assume it is the legislations in the Tenth Schedule that will be repealed. 264 TA, preamble. 265 TA, sec. 2 and 122. 266 TA, sec. 4(1), 6 and 7(1)(k). 267 7$VHF6HHWKHVHFWLRQIRUDIXOORXWOLQHRIWKH75$¶VIXQFWLRQV 268 See for example TA, sec. 3, 51-53, 61, 65 and 104. 269 TA, sec. 2-3 and First Schedule. 270 TA, sec. 3(2). See the section 3 for further details on the National Tourism Strategy. 271 TA, sec. 51-53. KWS would probably be included as lead agencies in relation to marine tourist activities within marine national parks and reserves, see definition of lead agency in TA, sec. 2. 272 See for example TA, preamble and sec. 3, 7, 53 and 106. 273 TA, sec. 2. A host is a resident or a member of the local community at a tourist destination and a visitor is a ³SHUVRQWUDYHOOLQJWRDSODFHRXWVLGHKLVRUKHUXVXDODERGHIRUQRWPRUHWKDQRQHFRQVHFXWLYH\HDUIRUOHLVXUH business or other purposes, not being a work-UHODWHGDFWLYLW\UHPXQHUDWLQJIURPWKHSODFHYLVLWHG´7$VHF 274 TA, sec. 2. 35 5.2.3 Tourism License The kind of marine tourist activities that require a tourism license under TILA, will also require a tourism license under TA.275 An application for such a license will be made to TRA and, when assessing a tourism license application, TRA will have to consider the following: ³(a) the standard for the tourism area development plan as prescribed by the Minister under section 3(2)(b); (b) the protection of fragile environmental resources, ecosystems and habitats as provided for by the ministry for the time being responsible for matters relating to the environment; (c) an environmental impact assessment licence issued under Part VI of the Environmental Management and Co-ordination Act, 1999 No.8 of 1999; (d) any representations received from members of the public; and (e) a recommendation or approval from any other relevant authority as may be necessary´276 TRA will also be bound by the national tourism strategy when performing its functions.277 Furthermore, it will be possible to specify conditions for granting tourism licenses in regulations under TA.278 When issuing a tourism license, it will be possible for TRA to include such conditions that it considers necessary.279 If a licensee is suspected of having committed an offence under TA, has contravened a provision of TA, or is subject to an allegation of misconduct, it will be possible for TRA to suspend his tourism license.280 If a licensee is convicted of having committed an offence under TA or no longer is qualified for the tourism license, TRA will have to cancel the licence.281 If a person fails to comply with the provisions of TA or the conditions of a tourism license, he will commit an offence.282 The sanction will be a fine of up to 100 000 KSh and/or imprisonment for up to one and a half years.283 5.2.4 Offence Relating to Pollution An offence will be committed under TA if someone, against the provisions of TA or any other law, discharges ³DQ\ dangerous materials, substances or oil into a designated tourism development area´RU pollutes ³wildlife habitats and ecosystems, or discharge[s] any pollutant detrimental to the envirRQPHQW´.284 The sanction will be a fine of up to 500 000 KSh and/or imprisonment for up to three years.285 Furthermore, it will be possible for the court to order a convicted person to ³clean up the polluted habitats and ecosystems´, mitigate ³effects of polluWLRQWR WKHVDWLVIDFWLRQRI´ TRA and/or finance the costs for such measures.286 TA does not contain any further specifications relating to this provision. 275 TA, sec. 2, 98(1)-(4) and Ninth Schedule. Specifications on the application procedure can be prescribed in regulations, TA, sec. 98(2)-(3) and 122. Class C includes boat excursions and water sports and Class E includes local traditional boat operators and tour leaders, TA, sec. 2, 98 and Ninth Schedule. 276 TA, sec. 98(5). It seems like the Minister is only responsible for developing standards for the tourism area development plan, specifying what this should include. It would have been interesting to know by whom and for which areas these plans will be developed. In relation to the requirement of considering an EIA-license, compare with EIA Regulation, sec. 4(2). 277 TA, sec. 3(4) and 7(1)(b). All relevant public bodies will be bound by this strategy when performing their legal functions, TA, sec. 3(4). 278 See TA, sec. 122. 279 TA, sec. 98(6). A license will expire on the 31st of December each year, see TA, sec. 98(7)-(8). 280 TA, sec. 100 and 102-103. 281 TA, sec. 101-103. 282 TA, sec. 112(1). See the section for further details. 283 TA, sec. 112(2). 284 TA, sec. 111(1). 285 TA, sec. 111(2). 286 TA, sec. 111(3). 36 5.2.5 Supervision Authorized officers will be responsible of carrying out the provisions of TA.287 According to TA, such an officer will have possibility to prosecute a person for an offence under TA, under the leave of the Attorney-General.288 TA does not specify how tourist activity organizers compliance with TA will be supervised. 5.3 Empirical Findings289 5.3.1 General According to Officer T, the tourism legislations are not strong on environmental matters at the moment, but this is something he thinks will change with the new TA. He says that the Minister has indicated that a task force will be established by December 2011 to develop regulations to implement TA.290 This has to be completed before TA can enter into force. At the moment, MT normally leaves environmental matters to KWS and NEMA. Issues relating to the marine environment are usually handed over to KWS. 5.3.2 Tourism License Officer T explains that TILA ensures the well-being of the tourism industry by regulating, for example, the kind of people undertaking tourism businesses, ensuring good relationship between tourist activity organizers and ensuriQJ WRXULVW¶V well-being. Until recently, environmental considerations have not usually been made by MT when assessing tourism license applications. He refers to a guideline outlining documents required to be submitted to MT before a licensing officer considers a tourism license application (similar to the guidelines referred to under subchapter 5.1.2). He also says that no environmental considerations made by licensing officers when determining whether an area is suitable for a tourist activity. Officer T explains that the licensing officer can include legally binding conditions in the tourism license. The specific conditions are based on the circumstances of each case and are normally related to negative demeanor of a tourist activity organizer, such as fraud, harassment and bad behavior. Environmental conditions are not included in tourism licenses. Also tourist activity organizers in Mombasa MNPR and Kisite Mpunguti MNPR mention that their tourism licenses do not include environmental conditions. At a later stage of the interview, Officer T mentions that environmental considerations sometimes can be made in the licensing of tourist activities. Examples of considerations that could theoretically be made in relation to marine tourist activities, are problems with littering and driving into sensitive corals. He also mentions that the Minister has issued threats of withholding tourism licenses when there have been environmental concerns. For example, the Minister has given directions that it is not acceptable for hotels to deposit waste into the ocean and that the hotel¶V tourism license can be cancelled if this continues. Officer T also explains that, even though the tourism legislations are not strong on environmental matters at the moment, MT has developed a working structure to ensure that different considerations are made in the licensing procedure. Before issuing a tourism license, the licensing officer makes sure that the applicant has submitted different kinds of documents and this includes approvals from other relevant government authorities. MT can for instance 287 TA, sec. 2 and 115. A Tourism Protection Service will be established under TA, which will be a specialized service of the National Police Service, TA, sec. 28. Its exact functions are not further outlined in TA. 287 TA, sec. 115-116. 288 TA, sec. 115-116. 289 The section is primarily based on an interview with Officer T, Regional Tourism Officer, MT. See Appendix 1 for an outline of all respondents, including KWS officers and tourist activity organizers. 290 Unfortunately I have not been able to find more information on how this is proceeding. 37 require a letter of consent from KWS before granting a tourism license for a marine tourist activity (e.g. jet-skiing) intended to take place within a marine national park and reserve. KWS then has to approve that the marine tourist activity can take place as the applicant has suggested. This is also something which is explained by Officer E(M) (see subchapter 6.2.2.2). 5.3.3 Enforcement Officer T explains that MT regularly supervises that tourism businesses have a tourism license. In marine national parks and reserves, these controls are performed by the licensing officer in conjunction with KWS. If a tourist activity organizer is found to contravene TILA, he is prosecuted and MT withdraws his tourism license. Officer T mentions that the supervision is facilitated when tourist activity organizers are organized in associations, since these usually require their members to have a tourism license. Also KWS officers and tourist activity organizers in Mombasa MNPR and Kisite Mpunguti MNPR mention that MT controls that tourist activity organizers have a tourism license. 38 6 Wildlife (Conservation and Management) Act In the first subchapter beneath, the legal investigation in relation to WCMA and the regulations under this act is presented. Focus is on describing provisions that could result in legal environmental requirements in relation to marine tourist activities and legal possibilities to enforce these. In the second subchapter, empirical findings are presented to give a picture of how marine tourist activities are regulated by KWS and tourist activity organizers in practice in Mombasa MNPR and Kisite Mpunguti MNPR. The empirical findings are intended to illustrate the role of environmental requirements in legal rules as well as more informal norms in the regulation of marine tourist activities and how these requirements are enforced. 6.1 Wildlife (Conservation and Management) Act 6.1.1 General WCMA entered into force in 1976, to implement the wildlife policy in Sessional Paper No. 3 of 1975.291 It has the purpose of governing matters related to the management, conservation and protection of Kenyan wildlife.292 WCMA does not contain a definition of wildlife, why it seems uncertain exactly what this includes according to the act.293 An area of land, including marine areas, can be declared a national park or a national reserve under WCMA and Mombasa MNPR and Kisite Mpunguti MNPR are protected under this legislation.294 As mentioned in the introduction of this essay, a problem in relation to marine national parks and reserves is described to be that WCMA and the regulations under this act were developed for the terrestrial environment.295 These legislations are therefore considered vague in relation to activities taking place within marine national parks and reserves.296 KWS is the authority responsible for wildlife management and conservation under WCMA.297 Its objective is to ensure that the management and conservation of wildlife in individual areas, but also in Kenya as a whole, HQVXUHV³RSWLPXPUHWXUQVLQWHUPVRIFXOWXUDO aesthetic and scientific gains as well as such economic gains as are incidental to proper wildlife management and conservation and which may be secured without prejudice to such proper management and conservation [my italicization]´298 According to the wildlife policy, economical gains are to be made from for instance tourism.299 The term service was chosen to PDUN WKDW.:6 LV ³WR FRQWULEXWH WR WKHZHOIDUH RI ORFDO FRPPXQLWLHV´300 The functions of KWS, according to WCMA, include for example: developing policies concerning the conservation; management and use of flora and fauna; maintaining wildlife in accordance 291 WCMA, preamble, Wildlife Policy, 2011, p. 8, and Okidi et al, p. 291. I have not been able to get a copy of the Sessional Paper. Since WCMA is considered inadequate to handle management and conservation of biodiversity and wildlife resources, it is currently undergoing a reform procedure and a new legislation has been proposed in the Wildlife Bill, 2011, Okidi et al, p. 275, 291-297 and 303-304. 292 WCMA, preamble. 293 Kameri-Mbote points out that there is no definition of wildlife in WCMA and that WCMA only contains a narrow definition of animal and game, Okidi et al, p. 297. According to Situma, wildlife includes flora, Okidi et al, p. 256. 294 WCMA, sec. 2, 6, 8 and 18. See definitions of national park, national reserve and land in WCMA, sec. 2. 295 Muthiga, p. 1. 296 Muthiga, p. 1. 297 WCMA, preamble and sec. 3. KWS was established in 1990, Okidi et al, p. 291-292. 298 WCMA, preamble, and Okidi et al, p. 292. 299 Okidi et al, p. 291. 300 Okidi et al, p. 292. 39 with conservation and management goals; conducting wildlife related research; and giving education and creating public awareness on wildlife conservation.301 KWS is also responsible of managing, controlling and maintaining marine national parks and reserves.302 This is conducted by the Director, via the members, of KWS.303 Within these areas WCMA, for instance, specifies that the Director can set aside areas for nursing of vegetation or breeding of animals.304 Furthermore, KWS shall develop and implement management plans, including for example how to GLVSOD\ ³fauna and flora in their natural state for the proPRWLRQRIWRXULVP´305 6.1.2 Requirements within National Parks and Reserves WCMA does not contain any provisions relating specifically to marine national parks and reserves. Legal rules relating to these areas are instead found in the general provisions on national parks and reserves.306 Furthermore, the provisions in WCMA mainly refer to national parks. The main rule is however that the provisions of WCMA described in this subchapter apply to national reserves, in the same manner as to national parks.307 Since it has not been possible to identify any modifications in relation to Mpunguti Marine National Reserve or Mombasa Marine National Reserve, the presumption in this essay is that the provisions in WCMA apply to these areas in the same manner as to national parks.308 WCMA contains a provision outlining behaviours which are generally prohibited within national parks and reserves.309 An offence is committed if someone unauthorised: ³ a) enters or resides in a National Park >«@; 301 WCMA, sec. 3A. It is generally considered important to involve local stakeholders in the management of the marine environment, for example public authorities, private companies and local communities. See for example Christiernsson, p. 55-1 and 63, Ikiara & Okech, p. 3, Kameri-Mbote & Cullet, p. 1-3, IUCN Eastern Africa Programme , p. 20, Okidi et al, p. 126 and 303, Muthiga, p. 5-6 and Wildlife Policy, 2011, p. 9, 19, 27-28 and 32. A problem in relation to WCMA seems to be that it is developed with a centralized (top-down) approach to environmental management, which does not reflect the more decentralized (bottom-up) approach which KWS in practice appears to be moving towards. 302 WCMA, sec. 2, 3A, 9(1) and 18(3). 303 :&0$VHF  DQG  7KH'LUHFWRURI.:6LV.:6¶V+HDGDQG&KLHI([HFXWLYH:&0$VHF& Wildlife Advisory Councils can be established for certain areas to inform KWS of suitable measures to handle problems facing wildlife management and conservation, WCMA, sec. 5B. 304 WCMA, sec. 9(2). There is no offence prescribed for entering such areas, why I have chosen not to mention this as an environmental requirement in the text. According to Situma, areas within national parks and reserves can be declared protection areas under WCMA, sec. 15, to regulate activities in order to protect the environment, Okidi et al, p. 256. According to my understanding of WCMA, sec. 15, it is only areas adjacent to (outside) the national parks and reserves, and activities within those adjacent areas, which can be regulated through such declaration, why WCMA, sec. 15, is not mentioned in the text. 305 WCMA, sec. 3A(d). It has not been possible for me to see the management plans for Kisite Mpunguti MNPR and Mombasa MNPR. According to Wildlife Policy, 2011, p. 11-12, there have been general challenges in implementing management plans. Accoding to Tuda and Lermarkat (personal communication), the management plans in place are too old and new management plans are under development for Mombasa MNPR and Kisite Mpunguti MNPR. 306 See for example WCMA, Part III and sec. 2. 307 WCMA, sec. 18(2-3). WCMA, Part III, contains sec. 6 ± 20. 308 Modifications on their applicability can be provided in the agreement required to establish a national reserve or by the Minister responsible of wildlife, WCMA, sec. 18(2-3). I have tried to search for relevant Gazette notices at the database National Council for Law Reporting, Kenya Law Reports (http://kenyalaw.org), but not been able to identify any relevant. 309 WCMA, sec. 13(3). It should be mentioned that kiting could be prohibited within marine national parks and reserves according to WCMA, sec. 2 and 12, and the Wildlife (Conservation and Management) (Recognized Airfields) Regulations, VLQFH µDLUSODQH¶ LQFOXGHV DQ\ W\SH RI NLWH DQG VLQFH WKHUH DUH QR UHFRJQL]HG DLU ILHOGV within marine national parks and reserves. Seen together with the marginal note of WCMA, sec. 12, this provision however seems to relate to kites flying on higher altitude, not the type of kiting performed within marine national parks and reserves. This requirement is therefore not mentioned in the text. 40 (b) cuts, injures or sets fire to any vegetation in a National Park, >«@ (d) willfully damages any object of geological, prehistoric, archaeological, historic, marine or other scientific interest within a National Park, or knowingly removes or attempts to remove any such object or any portion thereof from a National Park; (e) is, without lawful excuse in possession of any animal or trophy within or without a National Park;>«@ (g) deliberately disturbs or stampedes any animal in a National Park [«]´310 The sanction is a fine of up to 10 000 KSh and/or imprisonment for up to one year.311 If an offence under WCMA relates to more than one animal, the fine can be increased.312 The criminalized behaviours can be authorised by the regulations under WCMA or by a written permission from a KWS officer, provided that the behaviour is conducted in accordance with any conditions in such a written permission.313 According to WCMA, animal includes DQLPDO¶V HJJV DQG \RXQJ EXW QRW GRPHVWLF animals.314 WCMA does not contain any definition of vegetation, but there is a definition of YHJHWDEOH DV ³DQ\ IRUP RI YHJHWDEOH PDWWHU DOLYH RU GHDG´315 According to the Concise 2[IRUG'LFWLRQDU\ YHJHWDWLRQ LV GHILQHG DV ³SODQWV FROOHFWLYHO\ SODQW OLIH´316 Furthermore, there are no definitions of for example disturb, injure or stampede in WCMA. Relevant definitions used in the Concise Oxford Dictionary are the following. ,QMXUHLVGHILQHGDV³GR SK\VLFDO KDUP RU GDPDJH WR KXUW´ GLVWXUE LV GHILQHG DV ³EUHDN WKH UHVW FDOP RU TXLHW RI LQWHUUXSW´DQGVWDPSHGHLVGHILQHGDV³FDXVHWRDFWKXUULHGO\RUXQUHDVRQLQJO\´317 Regulations can be issued under WCMA in relation to specific national parks and reserves or in relation to these areas in general.318 As mentioned above, specific regulations have not been adopted for marine national parks and reserves. The regulation in place relates to Kenyan national parks and reserves in general, namely the Wildlife (Conservation and Management) (National Parks) Regulations (hHUHLQDIWHU µ:&05¶ 319 According to the definition of national park in WCMR, its provisions referring to national park apply to marine QDWLRQDO SDUNV DQG UHVHUYHV ³ZKHUH VSHFLILHG´ ³XQOHVV WKH FRQWH[W RWKHUZLVH UHTXLUHV´320 Reference is also made to the definition of national park in WCMA, where this term includes marine national parks.321 It is only in relation to the prescription of entry fees that WCMR specifically refers to marine national parks and reserves.322 Everyone, as a main rule, has to pay a prescribed fee to enter a national park and reserve.323 Exceptions can be made by, for example, KWS officers 310 WCMA, sec. 13(3). $FFRUGLQJWRWKH&RQFLVH2[IRUG'LFWLRQDU\SRVVHVVLRQLVGHILQHGDV³WKHDFWRUVWDWHRI actual hROGLQJRURFFXSDQF\´RU³SRZHURUFRQWUROVLPLODUWRODZIXORZQHUVKLSEXWZKLFKPD\H[LVWVHSDUDWHO\ IURP LW´ 7KRPSVRQ, p. 1067 and 1603. It should be noted that the Fisheries (General) Regulations prescribe offences for collecting corals, alive or dead (including the calcareous skeleton), and for collecting shells without DVKHOO¶VFROOHFWRUVOLFHQVH)LVKHULHV *HQHUDO 5HJXODWLRQVVHFDQG 311 WCMA, sec. 13(3). 312 See WCMA, sec. 56(2). 313 WCMA, sec. 13(4) and 16(1)(c). 314 WCMA, sec. 2. 315 WCMA, sec. 2. 316 Thompson, p. 1553. 317 Thompson, p. 394, 700 DQG:KHQVWDPSHGHLVXVHGDVDQRXQLWLVIRUH[DPSOHGHILQHGDV³DVXGGHQ IOLJKWDQGVFDWWHULQJRIDQXPEHURIKRUVHVFDWWOHHWF´Thompson, p. 1356. 318 See WCMA, sec. 18(2-3), 16 and 67, for details. Regulations can, for example, prescribe opening hours, conditions for allowing or refusing permission to enter, conditions for authorizations, and regulations for traffic and carriage of passengers. 319 These regulations are issued under WCMA, sec. 16. 320 WCMR, sec. 2. 321 See WCMR, sec. 2, and WCMA, sec. 2 and 6. 322 WCMR, sec. 3(1-1B), and WCMR, 2010. Compare WCMR, 2010, with WCMR, Schedule. 323 See WCMR, sec. 2- 3(1-1B) and Schedule, and WCMR, 2010, sec. 2-3 and 9-11. 41 with the specified rank.324 The specific entry fees are currently prescribed in the Wildlife &RQVHUYDWLRQ DQG0DQDJHPHQW  1DWLRQDO 3DUNV  5HJXODWLRQV  KHUHLQDIWHU µ:&05 ¶ ZKLFK partly modifies WCMR.325 Daily and annual fees are prescribed for any person who wants to enter a marine national park and reserve.326 Furthermore, single and annual fees are prescribed for vehicles, boats and vessels.327 According to WCMR, it is prohibited to ³ a) discard any refuse or litter; or (b) in any other way disfigure the National Park or part thereof; or (c) unnecessary cause or make any noise or do any act which is likely to disturb or annoy any other person [my italicization]´ within a national park.328 Exceptions can be made by, for example, the Director or an officer of KWS.329 Furthermore, the following behaviours are, as a main rule, prohibited within national parks, according to WCMR (exceptions can be made by the Director or an authorized officer of KWS): ³ D HQWHURUOHDYHDQ\1DWLRnal Park elsewhere than at a place approved by the Director as an entrance or exit; or (b) be within any National Park unless he is in a stopping place, or unless he is in a motor vehicle designed to travel on not less than four wheels; or (c) be within any National Park or any portion thereof between the hours of 7.15 p.m. and 6 a.m.; or (d) drive, or cause to be driven, a motor vehicle at a speed greater than 40 km. an hour; or (e) cause a vehicle to be stopped on any road in such a manner as to obstruct or impede the passage of any other vehicles; or (f) drive or cause to be driven, a motor vehicle than on open and maintained roads; or (g) alight from or get out of, or stand up in/on a motor vehicle, except in a stopping place; or (h) display any notice or advertisement within a National Park, or on any boundary of a National Park;or (i) collect any money from members of the public, or sell any goods, or offer any goods for sale, or purchase DQ\JRRGVRUFDUU\RQDQ\WUDGHZLWKLQD1DWLRQDO3DUN´330 It should also be mentioned that, for example, the Director or an officer of KWS can close areas within a national park from the public, from certain classes of people or from certain kinds of traffic, according to WCMR.331 This can be done for any reason, for example to protect flora and fauna, and for such periods which are considered suitable.332 An offence is committed if someone contravenes a provision of WCMR or a directive of the Director or an officer of KWS under WCMR.333 The sanction is a fine of up to 2 000 KSh and/or imprisonment for up to two months.334 324 See WCMR, sec. 3 (1). 325 WCMR, 2010, Parts II-III. 326 See WCMR, sec. 2-3, and WCMR, 2010, sec. 2, 5, 8 and 11. It is not totally clear from WCMR, 2010, if personal entry fees are prescribed for marine national reserves and which the amounts would be, see WCMA, sec. 3 and 11. Since WCMR prescribes entry fees for marine national reserves it however seems likely that payment of entry fee is also required to enter marine national reserves under WCMR, 2010. 327 :&05VHFDQG$FFRUGLQJWRWKH&RQFLVH2[IRUG'LFWLRQDU\ERDWLVGHILQHGDV³Dsmall vessel SURSHOOHGRQZDWHUE\DQHQJLQHRDUVRUVDLOV´YHKLFOHLVGHILQHGDV³DQ\FRQYH\DQFHIRUWUDQVSRUWLQJSHRSOH JRRGVHWFHVSRQODQG´DQGYHVVHOLVGHILQHGDV³VKLSRUERDWHVSDODUJHRQH´7KRPSVRQ, p. 142, 1559 and 1553. It can be noted that WCMR, 2010, only mentions marine national reserves in relation to annual fees for vehicles, boats and airplanes, WCMR, 2010, sec. 9 (e and f) and sec. 10. It is therefore not clear which the daily fees are. 328 WCMR, sec. 6. 329 WCMR, sec. 6. 330 WCMR, sec. 5. See WCMR, sec. 2, for definition of stopping place and road. 331 WCMR, sec. 4. It can be done by placing some type of sign, notice or mark indicating that the area is closed, WCMR, sec. 4(2). 332 WCMR, sec. 4(1). 333 WCMR, sec. 9. 334 WCMR, sec. 9. 42 6.1.3 Requirements in Relation to Trophies WCMA contains requirements in relation to animals recognized as trophies or government trophies which apply whether inside or outside a national park and/or reserve.335 A trophy is defined as ³any protected animal, (...) alive or dead, and any (...) durable portion whatsoever of that animal or bird or fish or other aquatic life´.336 The protected animals under WCMA include the marine animals: Dugong; Green Marine Turtle; and Hawksbill Turtle.337 Furthermore, under specified circumstances animals are government trophies and thereby owned by the state.338 This as, a main rule, includes a trophy without an owner, a protected animal accidently killed or dead DQGDOVR³any animal or trophy in respect of which a breach RIDQ\RIWKHSURYLVLRQVRI>:&0$@RUWKHUXOHVKDVEHHQFRPPLWWHG´.339 If someone obtains possession of a government trophy, he must report this to an authorized officer, for example a KWS officer or a police officer, and hand it over to him.340 An offence is committed if this is not reported or if the person unlawfully possesses a government trophy.341 The sanction is a fine of up to 10 000 KSh and/or imprisonment for up to a year.342 Furthermore, a forfeiture offence is, as a main rule, committed if someone possesses any trophy without having a certificate of ownership.343 The sanction is a fine of up to 10 000 KSh and/or imprisonment for up to three years.344 If an offence under WCMA relates to more than one animal the fine can be increased.345 6.1.4 Cancellation and Forfeiture If someone is convicted of an offence under WCMA, or the regulations under this act, any authorisation, permit or permission issued under WCMA or the regulations under this act is as a main rule cancelled.346 Furthermore, the person cannot, as a main rule, get a new permit before a period of three years has passed from the conviction.347 335 See WCMA, sec. 2, for definition of animal. It should also be mentioned that WCMA, Part IV, contains SURYLVLRQVUHODWLQJWRKXQWLQJ6LQFHVRPHRIWKHSURYLVLRQVLQWKHFKDSWHULQFOXGHIRUPXODWLRQVVXFKDV³LQDQ\ FLUFXPVWDQFHV ZKDWVRHYHU´ DQG ³IRU DQ\ SXUSRVH ZKDWVRHYHU´ WKRVH PLJKW DOVR EH DSSOLFDEOH XQGHU RWKHU circumstances than hunting. Relevant to mention in this essay is than that a forfeiture offence is, as a main rule, committed if a mechanically propelled vessel is used in a way which stampedes, drives or unduly disturbs a protected animal, WCMA, sec. 2, 33(a), 35(3 and 6). Seen in the context of the chapter in WCMA, it however seems most likely that the offences only are applicable in relation to hunting and they are therefore not described in the text. 336 WCMA, sec. 2. The Minister responsible of wildlife can make exceptions from WCMA, Part V, to any classes of trophies, WCMA, sec. 46. 337 WCMA, sec. 2 and Third Schedule. 338 WCMA, sec. 39. 339 WCMA, sec. 39. Exception is made for if something else is provided in WCMA. 340 WCMA, sec. 39(2) and 2. 341 WCMA, sec. 39(3). $GHDOHU¶VOLFHQVHLVUHTXLUHGWREHDWURSK\GHDOHU$FWLQJDGHDOHUZLWKRXWKDYLQJWKH required license is also criminalized, see WCMA, sec. 2 and 43, and Wildlife (Conservation and Management) Regulations, sec. 10 - 14 and First Schedule, Form 9-11. Since dealing is not an ordinary part of a tourist activity organizers business, the specific rules relating to dealers are not described. 342 WCMA, sec. 39(3). 343 WCMA, sec. 2, 42(1) and 42(3). An exceptionis if something else is provided in WCMA, WCMA, sec. 42(2). See WCMA, sec. 42(3), and Wildlife (Conservation and Management) Regulations, sec. 9 and First Schedule, Form 8, on certificate of ownership. 344 WCMA, sec. 42(1)(b). The sanction is higher if sRPHRQHKDVDGHDOHU¶VOLFHQVH:&0$VHF  D ,WFDQ also be mentioned that an offence is, as a main rule, committed if someone transfers the ownership of a trophy without holding a certificate of ownership and handing that certificate over to the receiver, WCMA, sec. 44. 345 See WCMA, sec. 56(2). 346 WCMA, sec. 51. 347 WCMA, sec. 53. Exception is made if it is expressly provided otherwise in WCMA. Furthermore, the Minister can, in specific cases, restrict the period or decide that the section shall not apply, WCMA, sec. 53. It can be noted that the section only refers to permits and licenses, not other kind of permissions. 43 If someone is convicted of a forfeiture offence, anything relating to the performance of the offence is generally forfeited to the state.348 Seized and detained things, other than government trophies, can also be forfeited to the state if a person charged with a forfeiture offence does not appear to answer within a period of three months.349 Furthermore, any seized or detained things, except trophies, are forfeited to the government after three months, unless someone is charged of a forfeiture offence in relation to the thing.350 6.1.5 Suspension According to WCMR, a person can be suspended from a national park if the Director or an officer of KWS bHOLHYHVWKDWWKHSUHVHQFHRIWKHSHUVRQ³would be detrimental to the proper PDQDJHPHQWDQGFRQWURORIWKH Q DWLRQDO S DUN´.351 The person can then be refused to enter or stay in the national park.352 6.1.6 Supervision and Prosecution As mentioned above, KWS has mandate to control marine national parks and reserves.353 Authorized officers, including for example KWS officers, have powers to ensure that requirements in WCMA and the regulations under this act are complied with.354 If a person is doing something for which a permit is required under WCMA, or the regulations under this act, an authorized officer can stop and detain him and demand him to show the required document.355 If the person is not able to do so, the officer can arrest him without warrant.356 When an authorized officer suspects someone of having committed an offence under WCMA or the regulations under this act he has powers to investigate the suspected act.357 He can require the person to bring objects for inspection, for example animals in his possession, any materials which seem to be connected to the offence and any documents required to be had by the person under WCMA or the regulations under this act.358 Furthermore, the officer has powers to enter and search, for example, vehicles and boats, and to open and search things.359 He can seize and detain for example materials, boats and suspected government trophies.360 Furthermore, the suspected person can be arrested and detained if the officer believes that there is a risk that he will not appear to answer a charge.361 A KWS warden has possibility to perform the prosecution of a person suspected of having committed an offence under WCMA or the regulations under this legislation, under direction of the Attorney General.362 348 WCMA, sec. 52(1). Forfeiture offences are for example found in WCMA, sec. 35 and 42. 349 WCMA, sec. 52(2). 350 WCMA, sec. 50(2). 351 WCMR, sec. 3(2). 352 WCMR, sec. 3(2). 353 WCMA, sec. 2, 3A, 9(1) and 18(3). 354 WCMA, Part VI and sec. 2. See the respective provision for details on the conditions for using different powers. 355 WCMA, sec. 49(1). 356 WCMA, sec. 49(1). 357 See WCMA, sec. 49, for more details. 358 WCMA, sec. 49(2)(a). 359 WCMA, sec. 49(2)(b). 360 WCMA, sec. 49(2)(c). See WCMA, sec. 50(2-3) and 52, on treatment of seized things. 361 WCMA, sec. 49(2)(d). See WCMA, sec. 50(1), on the treatment of arrested persons. 362 See WCMA, sec. 54. See WCMA, sec. 2 and Forth Schedule, for definition of warden. 44 6.2 Empirical Findings In this subchapter, the empirical findings from Mombasa MNPR and Kisite Mpunguti MNPR are presented. The first subchapter contains general information, intended to provide a background understanding of how KWS regulates marine tourist activities. In the following two subchapters, the empirical findings from Mombasa MNPR and Kisite Mpuguti MNPR are presented. First, the kind of marine tourist activities taking place within each area are described. Secondly, the environmental requirements which KWS demands tourists and tourist activity organizers to comply with during marine tourist activities are presented. Thereafter, a picture is given of how these environmental requirements are enforced. Finally, tourist activity organizers regulation of marine tourist activities through own collective norms is described. A summary is made when many respondents have given similar responses. When one or two respondents have given unique or more elaborate answers, reference is made to the respondent or respondents. An indication is also made when groups of respondents (tourist activity organizers or KWS officers) have given different answers. When the term µUHVSRQGHQWV¶LVXVHGWKLVLQFOXGHVWRXULVWDFWLYLW\RUJDQL]HUVDQG.:6RIILFHUV 6.2.1 General363 Most of the respondents mention that WCMA and the regulations under this act regulate marine tourist activities within marine national parks and reserves satisfactory. KWS officers however also mention challenges in applying these legislations in relation to marine tourist activities taking place within Mombasa MNPR and Kisite Mpunguti MNPR. Several KWS officers mention that they would prefer if there were regulations under WCMA, adjusted to handle issues in relation to marine national parks and reserves. WCMA and the regulations under this act were developed for the terrestrial environment and KWS officers mention that it can therefore be difficult to fully apply the provisions within the marine national parks and reserves. Officer F(K) explains that WCMA and the regulations under this act sometimes result in different environmental requirements in different marine national parks and reserves, for example in relation to feeding of fish and passing the areas with boat. Officer A(M) and Officer I(K) say that issues relating to marine national parks and reserves have been left out, or not properly included, in WCMA and WCMR. These legal acts are mostly based on the terrestrial environment and unclear in relation to marine areas. Officer I(K) explains that KWS therefore has developed codes of conduct to regulate marine tourist activities within Kenyan marine national parks and reserves, which are adapted to the situation of the particular area. Through these codes of conduct, KWS attempts to ensure that the environment is protected from negative impacts. He says that most of the codes of conduct are also found in the legislations, but not clearly articulated. He does not know which exact legal provisions that each code of conduct relates to. It is only if KWS brings a case to court that they would assess this. Officer A(M) mentions that it is difficult to separate the codes of conduct from the legal rules, since most of the codes of conduct also are found in the legislations. Also Officer E(M) explains that it is a problem that Kenyan marine national parks and reserves do not have specific regulations. WCMA and the regulations under this act do not address problems in these areas satisfactory. The environmental requirements in relation to marine tourist activities are not specific enough. It is also a problem that the regulation is not area based. Furthermore, the legislations do not provide enough guidelines on how to administer the areas. The regulation of marine tourist activities therefore depends on the 363 This subchapter is based on interviews with KWS officers and tourist activity organizers in Kisite Mpunguti MNPR and Mombasa MNPR. See Appendix 1 for details. 45 individual KWS wardens understanding of how a marine national park and reserve should be managed and controlled. He explains that each marine national park and reserve in Kenya has developed its own practices and codes of conduct over time. In relation to marine tourist activities, KWS is working more with codes of conduct and education, than applying WCMA and the regulations under this act. Officer E(M) explains that the type of marine tourist activities taking place within Mombasa MNPR and the environmental requirements that these should comply with have to do with the history of the area. When Mombasa MNPR was established, there were already marine tourist activities taking place. In order to be able to establish Mombasa MNPR, KWS had to make compromises, for example by allowing hotels to have jet-skis and tourist activity organizers to feed fish. The specific environmental requirements applied by KWS are thus based on how people agreed when the marine protected area was established and these have been passed down through history. He says that in Kisite Mpunguti MNPR, KWS enforced the legislations from the day the marine national park and reserve was established. Officer E(M) also mentions, as an example of how the history of an area affects the specific environmental requirements that are applied by KWS, that it is forbidden to feed fish in Kisite Mpunguti MNPR, but not in Mombasa MNPR. Initially, tourists were mainly going to Kisite Mpunguti MNPR for dolphin-watching. Furthermore, there are no glass-bottom- boats in Kisite Mpunguti MNPR and the reef system is deeper than in Mombasa MNPR. People therefore have to go into the water if they want to see the marine life in Kisite Mpunguti MNPR. In Mombasa MNPR, the reef system is shallow and there are glass-bottom- boats. People who cannot swim can therefore feed fish and enjoy the marine life from the boat, which has encouraged feeding of fish. He also mentions that it is not written in WCMA that it is forbidden to feed fish. Officer I(K) explains that in Kisite Mpunguti MNPR they enforce the legal prohibition against feeding fish. He thinks that a reason for this difference between Kisite Mpunguti MNPR and Mombasa MNPR is that it is easier to view the marine life in Kisite Mpunguti MNPR, since the fish are more abundant. In Mombasa MNPR, he thinks someone probably allowed feeding fish and it became a problem to stop this. Officer E(M) also mentions that tourism as well as environmental conservation are important in a marine national park and reserve, since one feeds the other. It is not possible to conserve the marine environment without money. All marine tourist activities have environmental impact to some extent and KWS has to guard against the extent of the impacts. He mentions that KWS has mandate is to protect the environment. Tourism is important since it creates value for the environment and justifies the reason for the protection. It is also LPSRUWDQWVLQFHLWVXSSRUWVSHRSOH¶VOLYHOLKRRGV 6.2.2 Mombasa Marine National Park and Reserve364 6.2.2.1 Marine Tourist Activities Marine tourist activities that the respondents mention takes place within Mombasa MNPR are snorkeling, diving, motor-boating (including glass-bottom boats), sailing, jet-skiing, pedal boating, canoeing, reef-walking, water skiing, wind surfing and kiting. 6.2.2.2 Environmental Requirements The specific environmental requirements (also referred to as e.g. rules, regulations, codes of FRQGXFWDQGGR¶VDQGGRQ¶WV WKDW.:6 applies in Mombasa MNPR to regulate environmental 364 This subchapter is based on interviews with the following respondents: Officer A(M), KWS; Officer B(M), Sergeant, KWS; Officer C(M), Ranger, KWS; Officer D(M), Coxswain, KWS; Officer E(M), Senior Warden, KWS; Organizer A(M); MBOA(A), consisting of two respondents; MBOA(B), consisting of three respondents 0%2$ $ DQG0%2$ % DUHFROOHFWLYHO\UHIHUUHG WRDVµ0%2$V¶ ; NCBOF, consisting of two respondents; and Trainer. See Appendix 1 for details. 46 impact from marine tourist activities are not written down. Instead, the KWS officers learn the specific environmental requirements through educating each other. The respondents however also refer to different written sources where environmental requirements are found, including the following: WCMA and WCMR; PDULQH ZLOGOLIH FRGH RQ .:6¶V ZHESDJH DQG LQ the brochure for Mombasa MNPR (see Appendix 2), GRV DQG GRQ¶WV RQ WKH entry ticket (see Appendix 3), posters and signboards. Environmental requirements that the respondents mention that KWS applies in Mombasa MNPR to regulate environmental impacts from marine tourist activities are: It is not allowed to -­‐ stand on corals; -­‐ harass, disturb or touch any marine life; -­‐ pick and show up, or collect, any marine life; -­‐ leave anything, for example litter; -­‐ anchor aW FRUDO UHHIV WKH ERDW KDV EH IDVWHQHG WR .:6¶V EXR\V ZKHUH WKHVH DUH SODFHG RXW RU anchored in the sand); -­‐ damage anything; -­‐ perform certain marine tourist activities without paying entry fee; or -­‐ perform jet-skiing during low tide or outside the jet-ski zones. There is a requirement of paying an entry fee to visit the marine national park, and sometimes the marine national reserve, when performing certain marine tourist activities. Officer B(M) explains that payment of entry fee is only required if the person will be able to view the marine life, for example when diving, snorkeling and going with glass-bottom boat. Activities such as canoeing and jet-skiing do therefore not require payment of an entry fee. He also mentions that there are restricted areas (coral gardens) in the marine national reserve, where KWS requires payment of entry fee to view the marine life. Officer E(M) mentions that it should not be a problem for a vessel to only pass through the marine national park. Officer A(M) says that payment of entry fee is required to visit the park as well as the reserve. He also explains that there is a memorandum of understanding between KWS and the MBOAs, according to which the members of these associations do not have to pay entry fees. MBOA(A) mentions that they have to pay the same entry fee and follow the same rules of how to behave in the park and the reserve. They do not only have to pay for glass-bottom boats, but also for example for canoes. They are required to pay even when tourists only want to be transported from one place to another within the marine national park and reserve. Jet-skis are only allowed to operate during high tide and within specified zone in the intertidal zone. The jet-skis are not allowed to go into the marine national park. Officer B(M) explains that there was a high mortality rate of turtles during a period. He says that studies showed that jet-skis killed turtles and that it might be one of the reasons for the jet-ski zones. Officer E(M) explains that the jet-ski zones were established because of conflicts that existed between different jet-ski operators, not because of environmental consideration. There are no official speed limits in Mombasa MNPR. Officer D(M) however mentions that the boat should be slowed down when approaching snorkeling and diving sites, for example since the noise can scare away marine life. Officer B(M) explains that KWS sometimes does not apply provisions in WCMA, which are not suited for the marine national park and reserve. He says that feeding of animals is prohibited under WCMA. In Mombasa MNPR, KWS however allows feeding of fish, after having received a study which showed that feeding of fish does not harm these. A reason for this was also that tourist activity organizers wished to continue feeding fish. Officer D(M) mentions that it is important to treat tourists well, for example by feeding fish, since that is what they have paid for. MBOA(A) says that they were in the area before KWS arrived and that they had some rules which KWS continued to apply. For example, KWS saw tourist activity organizers feeding fish and that it pleased tourists. KWS therefore chose not to enforce the prohibition against feeding fish in WCMA. Officer E(M) explains that nowhere in 47 WCMA or the regulations under this act can it be found that it is prohibited to feed fish. He says that KWS in Mombasa MNPR ordered a study which showed that this does not result in negative impact. Officer E(M) explains how KWS can control the type of marine tourist activities taking place within a marine national park and reserve. KWS does not license marine tourist activities, but a letter of consent is required from KWS in order for a tourist activity organizer to receive a tourism license from MT. Furthermore, the KWS warden can deny a marine tourist activity to take place by using the power to stop activities which are prejudicial to the management of the marine national park and reserve (WCMR, sec. 3(2)). Officer E(M) says that WCMR, sec. 3(2), was intended to be used to stop ongoing activities, but that KWS uses this power indirectly. He mentions an example where tourist activity organizers had bought jet-skis and asked KWS for consent to receive a tourism license from MT. He explains that KWS then had to balance different interests. KWS had previously decided not to allow more jet-skis to be licensed in relation to Mombasa MNPR. The tourist activity organizers had however struggled to buy jet-skis and the question arose if KWS only allows hotels to use jet- skis. KWS then had to consider both what functions within a marine national park and reserve and how to get goodwill from the local community, by showing that KWS supports their income source. The KWS warden decided to give approval. Officer E(M) says that he would prefer if a regulation outlined the procedure to be followed when deciding which marine tourism activities to allow in the marine national park and reserve. It would then be easier to disallow or re-distribute the jet-skis between tourism enterprises. 6.2.2.3 Enforcement How are Tourist Activity Organizers Informed about the Environmental Requirements? In Mombasa MNPR, KWS collaborates with different stakeholders, including tourist activity organizers, to ensure that the environmental requirements in the area are followed. Tourist activity organizers are informed of the requirements by KWS through verbal communication, educations, meetings and workshops. KWS educates tourist activity organizers on for example the importance of the marine national park and reserve and which environmental requirements to adhere to during marine tourist activities in order to avoid harming the marine environment. As mentioned above, tourist activity organizers can also get written information about the environmental requirements from, for example, the entry ticket, posters and signboards. Officer E(M) says that KWS does not have a formal structure of communicating the environmental requirements to tourist activity organizers. The requirements are mainly explained verbally to tourist activity organizers, for example through the MBOAs, and sometimes by a written letter. MBOA(A) says that they are only given written information about the environmental requirements in the form of for example posters, which are not the actual legal rules. They believe that when KWS officers inform tourist activity organizers of how to behave during marine tourist activities, the KWS officers cite rules from their heads, not from the actual legal rules. How are Tourists Informed about the Environmental Requirements? Tourist activity organizers have a central role in informing tourists of the environmental requirements applied by KWS in Mombasa MNPR. Tourist activity organizers are educated by KWS on how to inform tourists about these. For example, before getting to the marine national park for snorkeling, the tourist activity organizer should do a debriefing about the requirements with the tourists. The tourist activity organizer should also guide the tourists on how to behave in the water. 48 As mentioned above, KWS also has written information about environmental requirementV IRU H[DPSOH DW .:6¶VZHEVLWH LQ EURFKXUHV DW VLJQERDUGV DQG RQ WKH HQWU\ ticket. Officer D(M) explains that KWS officers are present in Mombasa MNPR, and can sometimes inform tourists about the environmental requirements. MBOA(A) however mention that it is only the tourist activity organizers who inform tourists of the environmental requirements and that KWS officers do not normally talk to tourists. How are Marine Tourist Activities Supervised? KWS is the authority supervising that marine tourist activities taking place within Mombasa MNPR are conducted in adherence with the environmental requirements. KWS officers perform this supervision through daily boat patrols in the water and foot patrols on the beach. According to the KWS officers, they supervise both behaviors of tourist activity organizers and tourists. Officer D(M) explains that, during boat patrols, the KWS officers control that tourists and tourist activity organizers have paid entry fees. He also mentions that KWS officers supervise, for example, if there are shells or corals in the boats and that the captain is careful not to drive into corals. He says that KWS officers sometimes join tourist activity organizers on the boat, or go into the water where snorkeling takes place, to supervise the activities. The MBOAs say that the main focus of KWS officers is to collect entry fees and control entry fee tickets, but that they sometimes also supervise other behaviors. The MBOAs mentions that KWS officers do not normally go into the water. Tourist activity organizers have a central role in supervising that tourists comply with the environmental requirements during marine tourist activities. Tourist activity organizers also supervise each other¶V EHKDYLRUV GXULQJ PDULQH WRXULVW DFWLYLWLHV VHH PRUH DERXW WKLV LQ subchapter 6.2.2.4). The MBOAs say that it is mainly tourist activity organizers who supervise how tourists are behaving during marine tourist activities, not KWS officers. Officer D(M) explains that the tourist activity organizer is the person nearest the tourist. The tourist activity organizer should therefore snorkel together with the tourists during snorkelling excursions and make sure they follow the environmental requirements. Officer B(M) explains that KWS works closely with the people of the local community, for example tourist activity organizers, to ensure environmental protection. They support KWS with supervising that the environmental requirements are complied with and can contact KWS in case of problems. Officer C(M) says that it would not be possible to effectively supervise the compliance with the environmental requirements if KWS was not working with the local community. He explains that the people of the local community are present in the field most of the time and therefore have a lot of knowledge. KWS often becomes aware of problems through a call from someone in the local community. What Happens if a Tourist Violates the Environmental Requirements? If a tourist violates an environmental requirement, he is informed to stop the behavior and educated about the requirement. According to the KWS officers, they normally inform tourists to stop the behavior and can also help the tourist activity organizers with educating tourists about the environmental requirements. According to the MBOAs, KWS officers sometimes tell a tourist to stop contravening the environmental requirements. KWS officers however normally go through tourist activity organizers and do not talk directly to tourists. It is therefore mainly tourist activity organizers who inform tourists that are violating the environmental requirements. What Happens if a Tourist Activity Organizer Violates the Environmental Requirements? If a tourist activity organizer violates the environmental requirements, the KWS officers normally start by educating him, and it can also be followed by a verbal or written warning. 49 KWS officers sometimes suspend the tourist activity organizer from Mombasa MNPR for a period of time. It is unusual that KWS takes tourist activity organizers to court. MBOA(B) says that if a tourist activity organizer violates the environmental requirements, KWS will first give one or two warnings. If the behavior is repeated a third time, the tourist activity organizer might be taken to court. He could also be suspended from Mombasa MNPR. In serious cases, the tourist activity organizer can get a lifetime suspension. MBOA(A) says that if a tourist activity organizer violates the environmental requirements, he can be given warnings, but that this depends on the individual KWS officer and how the tourist activity organizer behaves towards him. They mention that KWS officers also can suspend a tourist activity organizer from Mombasa MNPR for a period of time, sometimes forever, depending on the individual KWS officer. MBOA(A) emphasizes that the rules are unclear and that they are therefore uncertain whether the decisions of KWS officers are legal. Furthermore, they mention that it has become more common that tourist activity organizers are taken to court by KWS, for example when they have failed to pay the entry fee. Officer B(M) explains that if a tourist activity organizer violates an environmental requirement, KWS officers educate the person, explain the purpose of the requirement and the consequences of not following these. He says that KWS officers most often solve problems in this manner, instead of using sanctions. According to Officer B(M) and Officer E(M), a tourist activity organizer who has violated an environmental requirement is also usually given one or several warnings by KWS. The warnings provide justification to suspend the person from Mombasa MNPR, if the violations were to continue. The decision to suspend someone would be taken by the KWS warden. Officer B(M) explains that WCMA can give the impression that KWS works more with command and control, than they actually are. He explains that, in order to preserve the marine environment, it is important to not use too much force to ensure compliance with the legal rules. KWS is not present in Mombasa MNPR only to arrest people, but to also help the people of the local community to improve their livelihoods. Only when cooperating will it be possible to preserve Mombasa MNPR. Officer E(M) says that it is only in extreme cases that someone would be suspended, not for example for picking shells. He explains that KWS applies WCMR, sec. 3(2), when suspending someone and that this can be applied even if the environmental requirement which the tourist activity organizer has violated is not found in the legislations. Officer A(M) mentions that a tourist activity organizer can also be arrested and taken to court if he violates environmental requirements, but that the fines are very low. The convicted person can therefore simply pay the fine and return. He mentions that it is sometimes not possible to take a person who has committed an offence to court. KWS can also suspend the person as a disciplinary measure. The KWS warden then writes a letter with the decision to the tourist activity organizer and the MBOA where he holds a membership. The time period of the suspension is usually two weeks to six months, depending on the circumstances. He says that suspension can be more effective than taking a tourist activity organizer to court, since the person is cut off from his source of income. Officer B(M) explains that, since KWS enforces WCMA and the regulations under this act, they have to be able to determine which legal provisions a person has breached if he is taken to court. For example, the specific environmental requirements in relation to jet-skiing are not found in the legal acts. If a person is jet-skiing within the marine national park, he could however be prosecuted for disturbing the marine life, under WCMA, sec. 13. Officer E(M) explains that, because of the lack of specific regulations in relation to marine national parks and reserves, it is difficult to prosecute someone for violating the environmental requirements. KWS avoids going to court, since it can be difficult to defend the case and since KWS therefore risks losing it. The provisions are too vague and do not define what is prohibited and not, such as for example the prohibition against disturbing wildlife (WCMA, sec. 13). There can therefore be problems in court when interpreting what the provisions 50 mean. He says that there are a few clear legal rules in the legislations, for example that it is forbidden to enter the marine national park and reserve without paying the entry fee and that it is prohibited to pick corals or shells. Other issues in relation to marine tourist activities than failure to pay entry fees are not brought to court, since it is unclear which provisions to apply. Officer E(M) also mentions that it is a problem that the sanctions prescribed in WCMA and WCMR are no longer deterrent. He also explains that when KWS prosecutes someone, they look for a suitable provision in any legislation that deal with the environment, for example EMCA. 6.2.2.4 Norms of Tourist Activity Organizers General There are two associations of tourist activity organizers in Mombasa MNPR: the Mombasa Boat Owners Association and the Mombasa Boat Operators Association (referred to as MBOA(A), MBOA(B) and collectively MBOA). The MBOAs explain that tourist activity organizers within Mombasa MNPR were initially doing business individually. Since they found themselves disorganized, they came together and formed an association in 1992, with help of KWS. This association was later divided into two associations, MBOA(A) and MBOA(B). The MBOAs are in their turn members of the umbrella organization NCBOF, which in total has twelve affiliate associations with members undertaking tourism enterprises within Mombasa MNPR. Tourist activity organizers are required to be members of one of the MBOAs in order to be allowed to undertake marine tourist activities within Mombasa MNPR. This requirement is mentioned by both the MBOAs and the KWS officers. The reason for this requirement is that it is easier to control the behaviors of tourist activity organizers if these are organized in groups. Officer A(M) explains that this is a decision made by KWS and not a requirement found in the legislations. Officer B(M) explains that both KWS and MT require tourist activity organizers to be members of an association. Officer E(M) explains that, since there are no clear and specific regulations developed for marine national parks and reserves, it is important to find alternative ways of ensuring that the management of the area functions properly. He says that most people working with tourism businesses in the area are organized in associations. KWS is trying to empower these associations so that they regulate themselves, instead of only KWS regulating them. Part of the tourist activity organizers from the MBOAs, operating glass-bottom-boat excursions, have recently been involved in workshops and trainings, organized by Trainer WKURXJK.:6 KHUHLQDIWHUUHIHUUHGWRDVµ3URMHFW([SORUHWKH2FHDQ7RJHWKHU¶ 365 Officer E(M) explains that the fact that tourist activity organizers are organized into DVVRFLDWLRQV WKDW KDYH FRGHV RI FRQGXFW PDNHV .:6¶V ZRUN HDVLHU +H SHUFHLYHV WKH DVVRFLDWLRQV¶FRGHVRIFRQGXFWDVDQRWKHUOHYHORIUHJXODWLRQZKLFKLVLPSRUWDQWIRU.:6¶V UHJXODWLRQV 7KH DVVRFLDWLRQV¶ FRGHV RI Fonduct regulate people at a lower level, before .:6¶VUHJXODWLRQVDUHDSSOLHG Codes of Conduct Both of the MBOAs have constitutions and codes of conduct (also referred to as for example norms and dos DQGGRQ¶WV ZKLFKUHJXODWHWKHLUPHPEHU¶V behaviors. 7KH0%2$V¶FRGHVRI conduct are similar and these include requirements of how tourist activity organizers should behave during marine tourist activities in order to avoid harming the marine environment. The 365 7UDLQHULVGRLQJKLV3K'WKURXJK.:6RQXVLQJLQWHUSUHWDWLRQWRLQIOXHQFHYLVLWRUV¶EHKDYLRXUV 51 codes of conduct are communicated to all members of the MBOAs and the members have agreed to follow these. 2IILFHU ( 0  PHQWLRQV WKDW WKH WRXULVW DFWLYLW\ RUJDQL]HUV¶ FRGHV RI FRQGXFW KDYH DQ important role in regulating environmental impacts from marine tourist activities within Mombasa MNPR. He thinks that these codes of conduct make tourist activity organizers more responsible. MBOA(A) mentions that, since the main focus of KWS is to collect entry fees, the marine environment would be destroyed if tourist activity organizers were not regulating each oWKHU¶VEHKDYLRUVZLWKLQWKHDVVRFLDWLRQ1&%2)VD\WKDWDVVRFLDWLRQV¶FRGHVRIFRQGXFW have an important role in regulating tourism activities within Mombasa MNPR. Since the codes of conduct derive from the people of the local communities, people support them and enforce them. MBOA(B) gives me a copy of their constitution and codes of conduct. According to the &RQVWLWXWLRQ 0%2$ % ¶V JHQHUDO REMHFWLYH LV ³0DULQH FRQVHUYDWLRQ WRXULVP EXVLQHVV WR benefit the members and the local people of Kenya and the woUOGDWODUJH´7KH&RQVWLWXWLRQ DOVR LQFOXGHV PRUH VSHFLILHG REMHFWLYHV LQFOXGLQJ IRU H[DPSOH ³SURYLGH a framework for good conduct, discipline and behavior for all parties operating in and a round Mombasa PDULQH SDUN DQG UHVHUYH LQ WKH DUHD RI WRXULVP´ ³FRQVHUYH DQG SURPRWH FRQVHUYDWLRQ HGXFDWLRQLQDQGDURXQGDO.HQ\DQPDULQHSDUNVDQGQDWLRQDOSDUNVDQGUHVHUYH´ ³SURPRWHD IRUXP « WRGLVFXVVPDWWHUVZKLFKEHDUGLUHFWO\DQGLQGLUHFWO\RQPDULQHFRQVHUYDWLRQDQG WRXULVP GHYHORSPHQW´ DQG ³SURPRWH WRXUism and education awareness on marine FRQVHUYDWLRQ´ $FFRUGLQJ WR WKH &RQVWLWXWLRQ WKH 0%2$ % ¶V GLVFLSOLQDU\ committee has power to develop codes of conduct, in accordance with the objectives of the Constitution, which members of the association should follow. Examples of codes of conduct that have EHHQGHYHORSHGDUHWR³FRQVHUYH0$5,1(´³QRWKDUDVVPDULQHOLIHHJSLFNLQJPDULQHOLIH for example corals, shells and fishing at the marine park, anchoring on corals and among RWKHUV´ DQG WKDW WKH\ ³VKRXOG educate the clients about the DOs and DONTs at the marine 1DWLRQDO 3DUN DQG 5HVHUYH´ 0%2$ %  DOVR PHQWLRQV WKDW WKH\ DUH QRW DOORZHG WR WRXFK marine life or stand on corals according to the associations codes of conduct. According to the Constitution, in order to become a member of the MBOA(B), a tourist activity organizer has WRDJUHHWRIROORZWKHDVVRFLDWLRQ¶VFRGHVRIFRQGXFW+HDOVRKDVWREHREHGLHQWWRLWVOHDGHUV follow Kenyan laws and accept appropriate disciplinary measures if he fails to comply with these rules. The goal with Project Explore the Ocean Together is to train all glass-bottom-boat operators within Mombasa MNPR. At the workshops, glass-bottom-boat operators were educated on issues such as marine conservation, sustainable tourism and eco-tourism. Furthermore, the glass-bottom-boat operators developed codes of conduct for their snorkeling excursions (see Appendix 7). Trainer explains that it was important that the codes of conduct came from the glass-bottom-boat operators, in order to ensure that only codes of conduct they find suitable and will adhere to are included. The KWS officers, who also were involved in the workshops as stakeholders, emphasize that the codes of conduct come from the glass- bottom-boat operators. Officer B(M) explains that the MBOAs have own codes of conduct from before and that the workshop can be seen as a review of these. Officer E(M) explains that these codes of conduct were developed in a participatory process with the glass-bottom- boat operators. Through Project Explore the Ocean Together, they tried to develop agreeable codes of conduct which KWS and the glass-bottom-boat operators can use together and which can be placed on the beach. He says that during the trainings, they review whether the codes of conduct are functioning. Enforcement 7KH 0%2$V¶ FRGHV RI FRQGXFW DUH FRPPXQLFDWHG WR WKHLU PHPEHUV E\ WKH DVVRFLDWLRQV¶ leaders and through regular meetings. The tourist activity organizers compliance with the 52 codes of conduct during marine tourist activities is primarily supervised by members and leaders of the MBOAs and, in case a tourist activity organizer contravenes the codes of conduct, they try to handle this problem within the associations. When a tourist activity organizer violates the codes of conduct, he is normally first given warnings. If the behavior continues, he can be suspended from the MBOA for a period of time. In more serious cases, the tourist activity organizer can get a lifetime suspension from the association. If the tourist activity organizer refuses to follow a disciplinary measure, KWS can get involved in enforcing this. In serious cases, the MBOAs contact KWS directly. This is explained in more detail by the respondents as follows. MBOA(A) explains that the leaders of MBOA(A) supervise the behavior of the members. If they notice that a member is violating the codes of conduct, they warn him that the behavior can be reported to KWS if continued. If the leaders become aware that a member continues the behavior (with evidence), he can be taken to KWS. A member who violates the codes of conduct of MBOA(A) can also be suspended from the association. An example of when a tourist activity organizer can be suspended is if he picks corals for tourists, since this can harm the marine environment. MBOA(A) explains that, when the association suspends a member, they write a letter to KWS. This ensures that KWS can take action, if the person would to return to Mombasa MNPR. MBOA(B) says that it is important to educate members of the codes of conduct, since tourists will not be interested in visiting Mombasa MNPR if the marine environment is destroyed, which would bring their business to an end. According to the Constitution of MBOA(B), the disciplinary committee of MBOA(B) can summon a member who has bUHDFKHGWKHDVVRFLDWLRQ¶V&RQVWLWXWLRQRUFRGHVRIFRQGXFW,IWKHPHPEHULVIRXQGJXLOW\RI violating the codes of conduct, the disciplinary committee can, according to the Constitution, issue a warning, impose a fine of up to 500 KSh, or suspend the person from the association for up to one month. The person can also be completely excluded from MBOA(B) after a general meeting with the members of the association. MBOA(B) explains that if a member violates the codes of conduct, he is normally first given one or two warnings. If the member repeats the behavior a third time, he is normally suspended from the association for a period of time (usually two or three weeks). The time period of the suspension depends on the magnitude of the offence and is decided by the disciplinary committee. MBOA(B) explains that they try to handle minor mistakes within the association. In serious cases, they can contact KWS. They explain that, when suspending someone from MBOA(B), a letter is written to KWS and MT, in order to ensure that these authorities are ready to take action in case the person returns to Mombasa MNPR. If the person comes back, the association contacts KWS, who can arrest the person and take him to court for an offence. The member can then also be excluded from MBOA(B). Officer B(M) explains that the MBOAs can contact KWS in case a member, who has YLRODWHG WKHDVVRFLDWLRQ¶VFRGHVRIFRQGXFWGRHVQRWDGKHUH WR WKHDVVRFLDWLRQ¶VGHFLVLRQ WR suspend him. KWS can then help the association to enforce its codes of conduct. He says that it is within the mandate of the KWS officer to decide how to solve each case. The KWS officer normally assesses the problem through for example looking at whether the behavior of the tourist activity organizer is also an offence under WCMA or if the tourist activity organizer has only violated the codes of conduct of the MBOA. If the tourist activity organizer is suspected of having committed an offence, the KWS officer can decide to arrest the person. If the tourist activity organizer has only contravened the 0%2$V¶ codes of conduct, the KWS officer orders the person to leave work in accordance with the codes of conduct of the association. Also Officer E(M) explains that it is not necessary that a tourist activity organizer has violated WCMA or the regulations under this act for KWS to help an association enforce its suspension. He says that KWS attempts to make members of the MBOAs accept their 53 constitution and codes of conduct, since there is no purpose of having codes of conduct which members do not adhere to. KWS normally gets involved through a report from the committee of an association, describing what the member has done and that he has refused to accept the DVVRFLDWLRQ¶V VDQFWLRQ+HVD\V WKDW WKLV LV DQ H[DPSOHRI DQH[WUHPHFase where KWS can decide to suspend a tourist activity organizer from Mombasa MNPR. First, the KWS officer KDV D KHDULQJ ZKHUH KH OLVWHQV WR WKH DVVRFLDWLRQ¶V FKDLUPDQ¶V  DQG WKH DFFXVHG SHUVRQ¶V versions. The KWS officer XVXDOO\ IROORZV WKH DVVRFLDWLRQ¶s decision, but can sometimes decide to overrule it. He says that the KWS officer can, for example, decide to overrule the DVVRFLDWLRQ¶V GHFLVLRQ LI KH QRWLFHV WKDW WKH VDQFWLRQ RI WKH DVVRFLDWLRQ LV XVHG DJDLQVW D member in business rivalry. He mentions that KWS acts more or less like a court and that the tourist activity organizers respect that. At the trainings within Project Explore the Ocean Together, the glass-bottom-boat operators were educated on how and why to follow the codes of conduct developed through this project. The tourist activity organizers who have participated in the project have also been provided with information materials, containing the codes of conduct. KWS has also developed signboards with the codes of conduct, which are being placed on the beach. Officer E(M) mentions that a problem with the codes of conduct, developed through Project Explore the Ocean Together, could be that glass-bottom-boat operators only have agreed willfully to follow these. He questions what would happen if they would violate the codes of conduct. Trainer mentions that, since KWS has been involved in developing these codes of conduct, KWS officers remind the glass-bottom-boat operators to follow these. Since there is no authority with responsibility of enforcing these codes of conduct, he thinks there is however a risk that glass-bottom-boat operators might stop following these if they consider that the codes of conduct are not functioning. 6.2.3 Kisite Mpunguti Marine National Park and Reserve366 6.2.3.1 Marine Tourist Activities The type of marine tourist activities that the respondents mention takes place within Kisite Mpunguti MNPR are: snorkeling, diving, sailing (mostly dhows), motor-boating (do not have glass-bottom boats), dolphin-watching and also watching for whales and turtles. 6.2.3.2 Environmental Requirements The environmental requirements (also referred to as e.g. rules, regulations, codes of conduct DQGGR¶VDQGGRQ¶WV WKDW.:6 applies in Kisite Mpunguti MNPR to regulate environmental impacts from marine tourist activities are found in written sources. The respondents refer to different sources, including the following: WCMA and WCMR; codes of conduct for dolphin- watching (see Appendix 4); signboards at the KWS headquarters and at the jetty (see Appendix 5); marine park and reserve regulations (see Appendix 6) GRV DQGGRQ¶WV on the entry ticket (see Appendix 3); marine wildlife code RQ.:6¶VZHESDJHDQGLQWKHEURFKXUH for Kisite Mpunguti MNPR (see Appendix 2). Environmental requirements that the respondents mention that KWS applies to regulate environmental impact from marine tourist activities within Kisite Mpunguti MNPR are: It is not allowed to -­‐ stand on corals; -­‐ disturb or touch any marine life; -­‐ pick and show up, or collect, any marine life; 366 This subchapter is based on interviews with the following respondents: Officer F(K), Ranger, KWS; Officer G(K), Ranger, KWS; Officer H(K), Corporal, KWS; Officer I(K), Warden, KWS; Organizer B(K); Organizer C(K); Organizer D(K); Organizer F(K); and GVI, consisting of two respondents. See Appendix 1 for details. 54 -­‐ litter or drop oil into the ocean; -­‐ DQFKRUDWFRUDOUHHIV WKHERDWKDVWREHIDVWHQHGWR.:6¶VEXR\V  -­‐ enter the marine national park without a valid entry fee ticket, or a letter from KWS; -­‐ cross the marine national park by boat without paying the entry fee; -­‐ feed any animals; -­‐ swim with dolphins; -­‐ drive the boat too close to dolphins; or -­‐ exceed the speed limit in the marine national park. Officer I(K) says that it is clearly illegal to feed any animals within a marine national park according to WCMA. Officer F(K) explains that feeding of fish is forbidden since it can harm fish and disturb the marine ecosystem. He mentions that tourist activity organizers might want to feed fish to please tourists, but that this is unsuitable within a marine national park and reserve. The respondents mention that, in order to avoid scaring or hitting the dolphins, it is forbidden to jump into the water to swim with dolphins and that the captain has to keep distance between his boat and the dolphins. Officer H(K) explains that tourist activity organizers can benefit from the Kisite Mpunguti MNPR through tourism. He says that it is however important to adhere to the codes of conduct for dolphin-watching, since the dolphins might disappear, and then also tourists, if tourist activity organizers would continue to chase dolphins or to let tourists swim with them. KWS does not allow jet-skiing and water-skiing in Kisite Mpunguti MNPR, since these activities can harm the marine environment and are therefore considered unsuitable within a marine national park and reserve. Officer G(K), for example, mentions that these activities can knock dolphins and turtles when these animals come to the surface to breath. 6.2.3.3 Enforcement How are Tourist Activity Organizers Informed about the Environmental Requirements? In Kisite Mpunguti MNPR, tourist activity organizers are informed of the environmental requirements applied by KWS through verbal communication, educations, workshops, seminars and meetings. As mentioned above, tourist activity organizers can also get written information about the environmental requirements from, for example, entry tickets and signboards. The KWS officers mention the importance of collaborating with tourist activity organizers to ensure compliance with the environmental requirements during marine tourist activities, since they are the direct users of the marine national park and reserve. They also mention the importance of educating tourist activity organizers on the value of the marine national park and reserve and the reasons to follow the environmental requirements. GVI is currently undertaking workshops and trainings with tourist activity organizers, through KWS.367 GVI educates them on marine issues and how to behave during marine tourist activities in order to avoid harming the marine environment. They have recently retrained tourist activity organizers on how to follow the codes of conduct for dolphin- watching (see Appendix 4). GVI mentions that education has an important role in enforcing the environmental requirements of how to behave during marine tourist activities within Kisite Mpunguti MNPR. When tourist activity organizers realize the benefits of following the environmental requirements, they become more supportive. GVI says that swimming with dolphins used to be popular, but that it has almost stopped after the development of codes of conduct. They think that it is probably a result of codes of conduct, education, and improved relations. 367 GVI is a non-governmental organization educating tourist activity organizers on the codes of conduct for dolphin watching through KWS. 55 How are Tourists Informed about the Environmental Requirements? Tourist activity organizers have a central role in informing tourists about the environmental requirements applied by KWS in Kisite Mpunguti MNPR. During workshops and trainings, tourist activity organizers are educated by KWS and GVI on how to communicate the environmental requirements to tourists. Tourist activity organizers usually have a briefing about the excursion at the boat, while heading to the marine national park, during which he informs tourists about the environmental requirements. According to Officer H(K), KWS officers also inform tourists about the environmental requirements. Officer F(K) says that the KWS ticketing officer does not have time to inform tourists about the environmental requirements, while tourist activity organizers have a lot of time with the tourists. KWS has therefore passed the duty of informing tourists about the environmental requirements to the tourist activity organizers. Officer I(K) says that it is primarily tourist activity organizers who are to implement the environmental requirements in relation to tourists, since they are the ones in direct contact with the visitors. According to the tourist activity organizers, it is primarily tourist activity organizers who inform tourists about the environmental requirements. As mentioned above, tourists can also get written information about the environmental requirementVDW IRUH[DPSOHVLJQERDUGV WKHHQWU\WLFNHW.:6¶VZHEVLWHDQGLQEURFKXUHV Officer I(K) says that a difficult part of the tourism industry is to ensure that tourists are informed of the environmental requirements. Tourists usually travel by group, with a tour leader, to Kisite Mpunguti MNPR. When the group arrives, the tour leader usually organizes his clients and takes care of the entry tickets. The entry tickets should however be given to tourists, so that they can read the GR¶VDQGGRQ¶WV. Officer I(K) also explains that one of the purposes with the codes of conduct is to ensure that tourists get correct information about the environmental requirements that are applied by KWS within Kisite Mpunguti MNPR, since there are for example tourists coming from Mombasa MNPR, where other behaviors are allowed by KWS. How are Marine Tourist Activities Supervised? KWS is the authority supervising that marine tourist activities taking place within Kisite Mpunguti MNPR are conducted in compliance with the environmental requirements. Inspection of entry fee tickets is performed by KWS officers at three places: the ticket office, the jetty, and the marine national park. In the marine national park, KWS has a patrol boat ZKLFKPRYHVEHWZHHQWKHWRXULVWDFWLYLW\RUJDQL]HU¶VERDWVWRFKHFNWKHHQWU\WLFNHWV2IILFHU F(K) explains that KWS has zero tolerance on revenue loss. Officer G(K) explains that Kisite Mpunguti MNPR is different from other marine national parks and reserves in Kenya, since it is situated further out in the ocean. There are three islands within the area. KWS has a base and a watch tower at one of the islands, and from the watch tower, it is easy to observe if boats are entering the marine national park. KWS officers can therefore see if a tourist boat is arriving directly from another place than the jetty in Shimoni, where most tourists come from. He thinks that this makes it easier to control this marine national park than for example Mombasa MNPR. According to the KWS officers, during boat patrols, KWS officers also supervise that tourists and tourist activity organizers behave in accordance with the other environmental requirements mentioned above. They for example mention that KWS officers supervise the boat captains driving mode while dolphin-watching, that no tourists swim with dolphins and that no one stands on corals or picks shells. They say that, if a KWS officer gets suspicious, he can sometimes go into the water to supervise tourists and tourist activity organizers behaviors while snorkeling. According to the tourist activity organizers, KWS officers mainly supervise tourist activity organizers behaviors, meanwhile the behaviors of tourists are 56 supervised by tourist activity organizers. They mean that KWS officers mainly focus on inspecting entry tickets. They say that KWS officers usually stay in the patrol boats and only go into the water in case of emergency. Organizer D(K) mentions that KWS officers also supervise the mooring of boats and if anyone is picking shells or corals, but that collection of entry fees is most important for KWS officers. Organizer C(K) mentions that KWS officers only inspect the entry tickets and stay at the moorings. He says that KWS officers cannot see how tourists are behaving in the water and that it is therefore only tourist activity organizers ZKRVXSHUYLVHWRXULVWV¶EHKDYLRUV2IILFHU, . PHQWLRQVWKDWDFKDOOHQJHIRU.:6LVWKDWWKH\ do not have enough equipment and personnel. KWS normally has 1-2 patrol boats in the marine national park and reserve, supervising over 20 tourist boats spread out over the marine national park and reserve. 7RXULVW DFWLYLW\ RUJDQL]HUV KDYH D FHQWUDO UROH LQ VXSHUYLVLQJ WRXULVWV¶ EHKDYLors during PDULQH WRXULVW DFWLYLWLHV 7KH\ DOVR VXSHUYLVH HDFK RWKHUV¶ EHKDYLRUV 7RXULVW DFWLYLW\ organizers should, for example, swim with tourists and guide them in the water while snorkeling, in order to avoid harming the marine environment. Organizer D(K) for example mentions that the tourist activity organizer looks so that no one picks anything, except litter, and that no one stands on corals. What Happens if a Tourist Violates the Environmental Requirements? If a tourist violates an environmental requirement, he is informed to stop the behavior and is educated about the requirements by a tourist activity organizer or KWS officer. Officer H(K) explains that, when something less serious has happened, for example that a tourist has been allowed to swim with dolphins, the KWS officer initiates a conversation with the tourist activity organizer and the tourist. The problem is usually that they have inadequate information. The tourist activity organizers say that it is mainly them who inform tourists if they are violating the environmental requirements. What Happens if a Tourist Activity Organizer Violates the Environmental Requirements? If a tourist activity organizer observes another tourist activity organizer violating an environmental requirement, he informs the tourist activity organizer of the requirement and warns him that KWS will be informed if the behavior continues. If he continues the behavior, the tourist activity organizer can report this to KWS. If a KWS officer observes that a tourist activity organizer violates the environmental requirements, he normally educates the tourist activity organizer and can give him a warning. If the behavior continues, the tourist activity organizer could be suspended from Kisite Mpunguti MNPR for a period of time. The time period depends on the seriousness of the violation. In serious cases, KWS can take tourist activity organizers to court, but this is unusual. This is explained in more detail by the respondents as follows. Officer H(K) says that KWS primarily works with education and increasing of awareness towards tourist activity organizers. It is unusual that a tourist activity organizer is suspended from Kisite Mpunguti MNPR or taken to court, since their misbehaviors are normally not serious. Also Organizer D(K) says that sanctions are not often used in relation to tourist activity organizers, since they are well aware of the environmental requirements. Officer I(K) explains that the KWS warden would take the decision of suspending a tourist activity organizer from Kisite Mpunguti MNPR. The tourist activity organizer will suffer from his behavior during the suspension through economic loss. If the tourist activity organizer wishes to return to undertake marine tourist activities within Kisite Mpunguti MNPR, he needs to rethink his behavior and write a letter to the KWS warden, promising not violate the rules again. If the KWS warden is convinced, which most often is the case, he writes an official letter to the tourist activity organizer, allowing him to resume his business and warning him that there will be severe consequences if the environmental requirements are 57 violated again. If the tourist activity organizer would repeat the behavior, he can be completely suspended from Kisite Mpunguti MNPR. Also Officer F(K) mentions that a tourist activity organizer can be suspended if he violates environmental requirements. This can for example be used as a disciplinary measure if a tourist activity organizer has only contravened the codes of conduct and not the legal rules, why it is not possible to take court proceedings. He means that suspending a tourist activity organizer can actually be more effective than taking him to court, since the fines are not high enough to be deterrent. Examples, mentioned by Organizer B(K), of when a tourist activity organizer could be suspended from Kisite Mpunguti MNPR are if a boat is anchored at a coral reef or if a tourist is allowed to swim with dolphins. Officer F(K) explains that KWS used to take people to court more often. WCMA still gives the impression that KWS mostly works with law enforcement through prosecution and sanctions, but people are nowadays only taken to court in serious cases. He says that KWS has realized that it is more effective to work with communication and education towards tourist activity organizers to ensure compliance with the environmental requirements. Officer I(K) explains that, if someone would be taken to court, KWS would have to assess which provision of the legislations that could be applied, since the codes of conduct are not themselves legally binding. He says that most of the codes of conduct are also found in WCMA and therefore legally binding through this act. KWS usually applies WCMA, sec. 13, when taking someone to court. He explains that if a person for example swims with dolphins, which is not allowed according to the codes of conduct, KWS could apply the prohibition against disturbing wildlife in WCMA, sec. 13. He also mentions that KWS can apply other legislations than WCMA in court, for example EMCA. The KWS officers emphasize the importance of collaborating and having a good relationship with tourist activity organizers. Officer I(K) explains that KWS does not want to intimidate people of the local community by using too much force. In order to achieve environmental conservation, a strategic objective of KWS is to partner with the local community to ensure that they support conservation. He explains that conservation has been a conflict area and that too stringent law enforcement makes people of the local community dissatisfied. 6.2.3.4 Norms of Tourist Activity Organizers Tourist activity organizers undertaking marine tourist activities within Kisite Mpunguti MNPR are doing business independently, as individuals or families. They are not organized into associations and have not developed own collectively applied norms. Organizer E(K) and Officer I(K) mention that there have been efforts to establish associations by the tourist activity organizers, but that there have been challenges in getting this to function. 58 7 Analysis In this chapter, the material presented in Chapter Four to Six is analyzed in order to answer the questions of this essay. Parts of the analysis are connected to the theories presented in Chapter Two. The basics on Kenyan law, presented in Chapter Three, have also been considered when analyzing the materials. In the first four subchapters beneath, legal environmental requirements in EMCA, TILA, TA and WCMA in relation to marine tourist activities, and possibilities to enforce these, are identified. Based on the empirical findings, the analysis also gives indications on how this seems to be reflected in practice. The fourth subchapter also contains an analysis of the environmental requirements (in legal rules and more informal norms) which KWS demands tourist activity organizers and tourist to comply with during marine tourist activities. In subchapter five, the regulation of marine tourist activities through norms of tourist activity organizers in Mombasa MNPR is analyzed. 7.1 Environmental Management and Co-ordination Act 7.1.1 Environmental Requirements 7.1.1.1 Project Report and Environmental Impact Assessment License The type of activities that require the submission of a project report to NEMA are broadly defined in the Second Schedule of EMCA. The Second Schedule primarily seems to include development activities of a larger scale than marine tourist activities. It however also contains a couple of definitions which might be relevant in relation to marine tourist activities, namely: µan activity out of character with its surrounding¶ (Second Schedule, sec. 1); and µnatural conservation areas¶, µcommercial exploitation of natural fauna and flora¶ (Second Schedule, sec. 12). It seems unclear whether the Second Schedule, sec. 1, should be applied separately or in addition to the Second Schedule, sec. 2-14. For example, would a marine tourist activity require the submission of a project report if it is out of character with the surrounding marine environment (sec. 1), or does the activity also have to commercially exploit flora and fauna (sec. 1 and sec. 12)? It for example seems as jet-skiing activities might be out of character with its surrounding within a marine national park or reserve, since the overriding objective of the area appears to be marine conservation. It seems clear that marine national parks and reserves are a type of natural conservation areas and that the Second Schedule, sec. 12, applies to these areas. It however seems uncertain whether any kind of marine tourist activities could be commercial exploitation of natural flora and fauna according to the Second Schedule. Marine tourist activities seem to be commercial activities, since these are undertaken to make profit. The question is however if any marine tourist activities could be included as exploitation of fauna and flora? EMCA does not define exploitation. According to the definition in the Concise Oxford Dictionary, exploitation seems to include making use of or deriving benefit from natural flora and fauna. It seems unclear whether this, according to the Second Schedule, sec. 12, has to be direct or if it also includes more indirect use or derivation of benefits. Seen in the context of the Second Schedule, it seems most likely that exploitation only includes direct use or derivation of benefits. This seems to be in line with how Officer X interprets the provision, since he means that it probably only includes activities such as taking material samples. It does however not seem possible to exclude the possibility that activities making indirect use of and deriving indirect benefit from natural fauna and flora could be included. This could then include marine tourist activities such as dolphin-watching, snorkeling and diving, but probably not for example water-skiing or jet-skiing activities. According to the answer of Officer Y, it does not seem like this possibility has been investigated. 59 According to the EIA Guideline, NEMA appears to take various factors into account when DVVHVVLQJDQDFWLYLW\¶VHQvironmental impact and several of these factors could be relevant in relation to marine tourist activities taking place within marine national parks and reserves. It however seems unclear from EMCA and the regulations under this act how high the environmental impact of a marine tourist activity has to be in order to require the submission of a project report. It is possible that the Second Schedule of EMCA should be interpreted as that an activity generally has to fulfill a requirement in the Second Schedule, sec. 1, in order to require the submission of a project report. This might for example mean that a marine tourist activity, which commercially exploits flora and fauna, only requires the submission of a project report if it is out of character with its surrounding (sec. 1 and sec. 12). According to the EIA Guidelines, it seems as the likely environmental impact of a marine tourist activity at least has to have some significance to require the submission of a project report. It is however relevant to note that, according to the EIA Regulation, an EIA-license could be issued if NEMA finds that an activity would not have significant environmental impact. It might be possible to interpret this as that a marine tourist activity has to be connected with at least a risk of a significant environmental impact in order to require the submission of a project report, but this seems unclear. According to the above reasoning, it seems uncertain from EMCA and the regulations under this act whether any kind of marine tourist activities require the submission of a project report. Marine tourist activities such as snorkeling, diving and dolphin-watching do probably not have high enough environmental impact to require this. Jet-skiing seems to be the marine tourist activity most likely to require the submission of a project report, but this seems to depend on how the Second Schedule, sec. 1, should be applied. If a tourist activity organizer is required to submit a project report, he commits an offence when undertaking marine tourist activities without issuing this and, in that case, it seems like this could be a legal environmental requirement in relation to marine tourist activities. In the empirical findings, there appear to be different opinions among the officers at NEMA on whether or not a project report is required for any kind of marine tourist activities intended to be undertaken within a marine national park and reserve. According to responses of respondents from NEMA, KWS and the tourist activity organizers, it however seems clear that project reports have not been issued for any kind of marine tourist activities within Mombasa MNPR or Kisite Mpunguti MNPR in practice. Tourist activity organizers do consequently not seem to have EIA-licenses with specified legal environmental requirements of how to perform marine tourist activities. 7.1.1.2 Pollution Various provisions in EMCA and the regulations under this act appear to prescribe similar offences relating to pollution. A difference between the provisions seems to be for example whether the provision requires that a discharge of for instance waste or fuel oil during marine tourist activities causes a change in the receiving environment or if it criminalizes already the discharge. For the purpose of this essay, it appears suffice to establish that a tourist or tourist activity organizer who discharges waste, likely to be harmful to the environment, or fuel oil into the marine environment, seems to commit an offence under EMCA or a regulation under this act. Furthermore, depending on which provision that would be applied, it appears like a tourist activity organizer could be required to undertake immediate measures to minimize impacts on the marine environment from the discharge. It seems like this clearly could be seen as legal environmental requirements in relation to marine tourist activities. 7.1.2 Enforcement According to EMCA, NEMA seems to have a responsibility of supervising tourists¶ and tourist activity organizers¶ compliance with legal environmental requirements in EMCA and 60 the regulations under this act. Environmental inspectors at NEMA seem to have powers to perform investigations for this purpose. Since KWS appears to be the lead agency in relation to marine national parks and reserves, it seems like 1(0$¶VVXServision should be performed in collaboration with KWS. It appears unclear, from EMCA and the regulations under this act, exactly how the responsibility of performing supervision is divided between these authorities. According to the empirical findings, it mainly seems to be KWS which supervises tourists¶ and tourist activity organizers¶ compliance with environmental requirements during marine tourist activities within Mombasa MNPR and Kisite Mpunguti MNPR. According to EMCA, the general public could also have a role in performing supervision, since it seems like they could make complaints to PCC in case of environmental degradation from marine tourist activities. In case NEMA becomes aware of environmental concerns in relation to marine tourist activities, NEMA might perhaps have possibility to issue an improvement notice or a restoration order.368 It however seems unclear from EMCA and the regulations under this act whether improvement notices and restoration orders only can be issued to enforce specified legal environmental requirements, and in that case which these are, or if these are instruments to prescribe new legal environmental requirements in order to ensure for example sustainable development or a clean and healthy environment. It seems as though it might be possible to view improvement notices as a mechanism to enforce specified legal environmental requirements as well as a possibility to prescribe new legal environmental requirements, but this seems uncertain. The power to issue restoration orders is subject to the other provisions of EMCA and NEMA is to be guided by the principles good environmental management. This seems to indicate that it might only be possible to issue restoration orders to enforce specified legal environmental requirements in EMCA and perhaps other laws relating to the environment, but this also seems unclear. Because of the uncertainties, it is not possible to determine whether these instruments could have a role in regulating marine tourist activities. According to EMCA, environmental inspectors at NEMA seem to have possibility to arrest and prosecute a tourist or tourist activity organizer suspected of having committed an offence under EMCA or the regulations under this act. The prescribed sanctions are fine or imprisonment. The court also seems to have possibility to issue orders, in addition to these sanctions, for example it seems possible to order a tourist or tourist activity organizer to restore the marine environment affected by discharge of waste or fuel oil. According to the responses of Officer Z and Officer Y, it however seems unlikely that a tourists or tourist activity organizer, who violates a legal environmental requirement in EMCA or the regulations under this act, would in practice be prosecuted by environmental inspectors. Finally, EMCA seems to recognize the importance of awareness rising and education in order to ensure compliance with legal environmental requirements. Officer Y and Officer Z also mention the value of this and it seems like such incentives by NEMA have a role in ensuring compliance with legal environmental requirements during marine tourist activities in practice. 7.2 Tourist Industry Licensing Act 7.2.1 Environmental Requirements It seems clear that a tourist activity organizer undertaking marine tourist activities without a tourism license, or who does not comply with its conditions, commits an offence under TILA. Whether or not this could be seen as resulting in legal environmental requirements seems to 368 These instruments are mentioned in this subchapter since Okidi et al primarily appear to describe these as mechanisms to enforce legal environmental requirements. 61 depend on if the licensing officer at MT takes environmental considerations into account when issuing, varying or cancelling tourism licenses and if legally binding environmental conditions are included in these. The objective of regulating tourist activities is generally defined in TILA as promoting the development and well-being of the tourism industry. The act does not contain any specification on what is meant by the well-being of the tourist industry. Since the well-being of the tourist industry seems dependent on a healthy environment, it seems like this possibly might include environmental aspects. The substantive considerations to be made by the licensing officer when assessing a tourism license application are not further specified in TILA, than 7,/$¶V general objective. It therefore seems like the licensing officer, within this scope, might have a margin of discretion to decide whether or not to take environmental considerations into account when licensing marine tourist activities. He might have possibility under TILA to decide not to issue a tourism license, or to include legally binding environmental conditions in this, because of environmental reasons. It does not seem to be only TILA which is relevant for the licensing officer to consider when assessing a tourism license application. The principle of sustainable development in the Constitution could perhaps entail that tourism licenses should not be issued for marine tourist activities if the carrying capacity of a marine ecosystem would be exceeded. Furthermore, according to the EIA Regulation, sec. 4(3), Kenyan authorities are hindered to issue commercial licenses to micro project activities likely to have cumulative significant negative environmental impact, until a strategic environmental plan has been approved. There is no specification of which kind of licenses that are included as commercial licenses. As mentioned above, marine tourist activities appear to be commercial activities and it therefore seems like a tourism license could be a commercial license under this provision. Furthermore, there is no definition of which kind of activities that are included as micro project activities under EIA Regulation, sec. 4(3). Seen in the context of the provision, it seems like this includes activities with minor individual environmental impact and it therefore seems possible that this could include marine tourist activities. Also the empirical findings seem to indicate that this provision could be relevant in relation to marine tourist activities. The reasoning seems to show that according to EIA Regulation, sec. 4(3), MT is hindered to issue tourism licenses to marine tourist activities likely to have cumulative significant negative impact on the marine environment, until a strategic environmental plan has been approved. An indication of the type of considerations that are normally made by licensing officers, when assessing a tourism license application, appears to be found in the kind of information a tourist activity organizer is usually required to submit to a licensing officer, since this seems WRIRUPWKHRIILFHU¶VGHFLVLRQ-basis. It does not seem like this information is relevant from an environmental perspective. The answer of Officer T also indicates that the licensing officer does not normally himself take environmental aspects into account when assessing tourism license applications. From the answer of Officer T, it seems like the MT leaves the responsibility of environmental issues in relation to marine tourist activities to KWS. This seems to indicate that a licensing officer would only consider the possibility of impacts on the marine environment from marine tourist activities if informed of the likeliness of such impacts by KWS. According to the answers of Officer E(M) and Officer T, it seems like a licensing officer in practice can require consent from KWS when assessing tourism license applications for marine tourist activities. If KWS does not consent, it seems as the licensing officer could reject an application for a tourism license. Whether this could be seen as resulting in a legal environmental requirement seems to depend on whether or not environmental considerations are made by KWS when refusing to give consent (see subchapter 8.4.1.8 on the considerations to be made by KWS). 62 A picture of the kind of conditions usually included in a tourism license can be found in TILR. A condition which could have relevance from an environmental perspective seems to be that a marine tourist activity is required to be conducted within a designated area. From the answer of Officer T, it however seems like the area is not specified of environmental reasons. According to the answers of Officer T and tourist activity organizers, no environmental conditions appear to be included in tourism licenses in relation to marine tourist activities in practice. A licensing officer has possibility to vary or cancel a tourism license for a good cause under TILA. In the exercise of this power, it also seems like he should be guided by the interest of the well-being and development of the tourist industry. Within this scope, it seems like the licensing officer could perhaps cancel a tourism license, or vary this by adding environmental conditions, in order to prevent marine tourist activities from harming the marine environment. The answer of Officer T also appears to indicate that this power could be used to handle environmental issues. There does however not seem to be any indications in the empirical findings that this power has been used in relation to environmental impacts from marine tourist activities and, according to the reasoning above, it seems likely that this would in practice only be done if a licensing officer was advised to do this by KWS. Finally, the Minister appears to have possibility to give licensing officers directions of how to perform duties under TILA. Since it seems like such directions could include anything the Minister considers reasonable in order to properly regulate the tourism industry, such directions could possibly have relevance from an environmental perspective. According to the answer of Officer T, it seems like the Minister could direct licensing officers to take environmental considerations, but there does not seem to be any such directions in place in relation to marine tourist activities at the moment. 7.2.2 Enforcement The above reasoning seems to indicate that the legal environmental requirement which TILA would be most likely to result in is that a tourist activity organizer could be forbidden to undertake a marine tourist activity, by being denied a tourism license. According to TILA, the requirement of having a tourism license can be supervised by authorized persons and these seem to have powers to perform investigations. A tourist activity organizer suspected of having committed an offence, could be prosecuted and the sanctions are fine or imprisonment. According the empirical findings, MT appears to regularly supervise tourist activity organizer¶s compliance with the requirement of having a tourism license within Mombasa MNPR and Kisite Mpunguti MNPR. According to the answer of Officer T, it seems as a tourist activity organizer who is suspected an offence under TILA could be prosecuted. 7.3 Tourism Act 7.3.1 Environmental Requirements 7.3.1.1 Tourism License It seems clear that tourist activity organizers operating marine tourist activities without a tourism license, or who do not comply with its conditions, will commit an offence also under TA. As mentioned in relation to TILA, whether or not this could result in legal environmental requirements in relation to marine tourist activities seems to depend on whether TRA will take environmental considerations into account when granting tourism licenses under TA and whether TRA will include legally binding environmental conditions in these. The considerations that will be made by TRA when assessing a tourism license application appear more specified in TA than in TILA and it seems like some of the specified considerations might have relevance from an environmental perspective. As mentioned in 63 subchapter 8.1.1.1, it does not seem like tourist activity organizers have EIA-licenses for any type of marine tourist activities, why this consideration might not be relevant. Something which could perhaps lead to environmental consideration in the licensing of marine tourist activities seems to be if the ministry responsible of environmental matters would provide that relevant fragile environmental resources, ecosystems or habitats should be protected. Furthermore, it seems like consent from KWS could be required under TA when licensing marine tourist activities. As mentioned in relation to TILA, whether or not this could result in legal environmental requirements however seems to depend on whether or not environmental considerations are made by KWS when refusing to give consent. There also seem to be a couple of new instruments that will be developed under TA, which TRA should consider when assessing tourism license applications and which might entail environmental consideration in the licensing of marine tourist activities. Firstly, TRA will have to consider tourist area development plans when assessing tourism license applications under TA. TA does not specify which contents such plans will have or which areas these will be developed for. It therefore seems unclear at this stage if these will contain environmental aspects which could affect the licensing of marine tourist activities. An indication in TA of an environmental aspect that such plans might be intended to contain is that, since TRI will provide information for this plan, it might include carrying capacities and conservation needs and priorities of tourist destinations. This could in that case be relevant in relation to marine tourist activities. Secondly, TRA will be bound to consider and give effect to a national tourism strategy. According to the objective of this strategy, it seems like it could include matters related to the regulation of tourist activities. The content of this strategy is broadly defined as anything the Minister considers necessary in order to ensure sustainable tourism. The definition of sustainable tourism in TA seems to emphasize meeting the needs of visitors and hosts, but TA does not specify which factors that could be considered relevant to fulfil their needs. It therefore appears uncertain at this stage if the national tourism strategy will contain environmental aspects. According to the above reasoning, it seems possible that TRA will, depending on the contents of the materials to be considered, take environmental consideration when licensing marine tourist activities. TA does however not contain any specified substantive conditions for granting tourism licenses. There are for example no guidelines on how TRA should balance and prioritise different aspects, such as possible economical, social and environmental factors, in these materials. Furthermore, the only specification of which conditions that could be included in tourism licenses seems to be that the conditions have to be necessary. TA thus appears to leave a margin of discretion to TRA and it therefore seems uncertain at this stage whether the licensing of marine tourist activities under TA could result in any further legal environmental requirements compared to TILA. 7.3.1.2 Pollution A new legal environmental requirement in TA, compared to TILA, is that TA prescribes an offence relating to pollution of the environment. The provision seems to criminalize behaviours which are contrary to requirements in TA or any other law. TA does not contain any other provisions relating to pollution, why the reason for the reference to TA appears unclear (reference is not made to regulations under TA). It also seems uncertain at this stage which provisions of other laws that the provision in TA is intended to refer to. Furthermore, it appears unclear how the offence prescribed in TA relates to similar offences prescribed in EMCA in relation to pollution. One difference between these offences might be that the offence prescribed in TA could be intended to prevail over similar offences in EMCA when the pollution relates to the tourism sector, for example when polluting a designated tourism development area. The offence prescribed in TA however also seems generally formulated as discharging any pollutants detrimental to the environment, which 64 appears similar to the offences prescribed under EMCA. Because of the described uncertainties, it seems unclear whether the offence prescribed in TA will result in any further legal environmental requirement in relation to marine tourist activities compared to EMCA. 7.3.2 Enforcement TRA will have possibility to cancel or suspend a tourism license under TA. The conditions for using this power appear more specified in TA than in TILA and it seems as though it primarily will be possible to use this to enforce legal requirements in TA. Of relevance in relation to enforcement of legal environmental requirements for example seems to be that it will be possible to suspend or cancel a tourism license if a tourist activity organizer would be suspected or convicted of polluting the environment under TA. TA does not specify how compliance with legal requirements under TA will be supervised. It seems like a tourist or tourist activity organizer suspected of committing an offence under TA could be prosecuted. In comparison with the sanctions prescribed in TILA, the fine in TA is higher and the time period of the imprisonment is longer. Furthermore, if a tourist or tourist activity organizer is convicted of polluting the environment under TA, it seems like it will be possible for the court to order him to clean up, or finance the costs of cleaning up, the polluted environment. This seems to remind of the sanctions prescribed under EMCA in relation to similar offences. 7.4 Wildlife (Conservation and Management) Act 7.4.1 Environmental Requirements 7.4.1.1 Entering or Residing in a Marine National Park and Reserve It seems clear that a tourist or tourist activity organizer who enters or resides in a marine national park or reserve, without a written authorization from a KWS officer or an authorization in the regulations under WCMA, commits an offence according to WCMA, sec. 13. WCMR, sec. 3(1), e contrario, together with WCMR, 2010, appear to constitute an authorization to enter a marine national park and reserve upon payment of an entry fee. From WCMR and WCMR, 2010, it also seems clear that a tourist or tourist activity organizer, as a main rule, commits an offence when entering a marine national park or reserve without paying a prescribed entry fee. It seems like these offences could be seen as legal environmental requirements in relation to marine tourist activities, since they appear to limit the number of visitors to a marine national park and reserve. Exception from the legal environmental requirement of paying an entry fee can be made through permission by specified KWS officers according to WCMR. The KWS officer appears to have a margin of discretion when issuing such permissions. According to the empirical findings in Mombasa MNPR, there appear to be various exceptions from the requirement of paying an entry fee in this area. It seems as these could be valid exceptions under WCMR, provided that they derive from KWS officers with the specified rank. There does not seem to be as many exceptions from the requirement of paying an entry fee in Kisite Mpunguti MNPR, according to the empirical findings. 7.4.1.2 Cutting or Injuring Marine Vegetation It seems clear that a tourist or tourist activity organizer who, during a marine tourist activity, cuts or injures any vegetation within a marine national park or reserve, without written authorization from a KWS officer or an authorization in the regulations under WCMA, commits an offence under WCMA, sec. 13. There does not seem to be any authorization in the regulations under WCMA relating to this offence which is of relevance in relation to marine tourist activities. 65 WCMA does not contain any definition of how vegetation should be interpreted. The definition of vegetable in WCMA might indicate that vegetation should be broadly interpreted. In the Concise Oxford Dictionary, vegetation is defined as any plant life. This could indicate that vegetation in WCMA, sec. 13, includes any marine vegetation, for example sea-grass, seaweed and algae. WCMA neither defines how injure is to be interpreted. According to its definition in the Concise Oxford Dictionary, it seems as this could include causing any physical harm or damage. It might consequently be possible to interpret WCMA, sec. 13, as that an offence is committed if a tourist or tourist activity organizer cuts or causes any physical harm or damage to any marine vegetation during marine tourist activities. This could then clearly be seen as a legal environmental requirement in relation to marine tourist activities. 7.4.1.3 Object of Scientific Interest A tourist or tourist activity organizer who, during a marine tourist activity, wilfully damages or attempts to remove any object of scientific interest within a marine national park or reserve, without written authorization from a KWS officer or an authorization in the regulations under WCMA, clearly seems to commit an offence according to WCMA, sec. 13. There does not seem to be any authorization in the regulations under WCMA relating to this offence which is of relevance in relation to marine tourist activities. Neither WCMA nor the regulations under this act specify when an object has a scientific interest under WCMA, sec. 13. Various marine objects within a marine national park and reserve, for example marine animals, coral reefs and marine vegetation, could theoretically be included as objects with scientific interest. It however seems more likely that only objects with some kind of specific scientific interest, for example a marine object in relation to which research is being performed, are included as objects with scientific interest under WCMA, sec. 13. Although it thus seems uncertain exactly which marine objects that this could include, it seems clear that this offence could be seen as a legal environmental requirement in relation to marine tourist activities. 7.4.1.4 Disturbing or Stampeding Marine Animals A tourist or tourist activity organizer who, during a marine tourist activity, wilfully disturbs or stampedes any animal within a marine national park or reserve, without written authorization from a KWS officer or authorization in the regulations under WCMA, clearly appears to commit an offence under WCMA, sec. 13. There does not seem to be any authorization in the regulations under WCMA relating to this offence which is of relevance in relation to marine tourist activities. The term animal appears to be broadly defined in WCMA and it therefore seems as this could be interpreted as including any kind of marine animals, for example dolphins, turtles, fish, clams, starfish and sea-urchins. Also living corals and inhabited shells seem to be included as animals under WCMA. It however seems uncertain whether behaviors of tourists or tourist activity organizers in relation to empty shells or calcareous skeletons of coral reefs (without living corals) could be criminalized under WCMA, sec. 13. This seems to depend on whether or not this offence includes disturbing marine animals by harming their habitat. WCMA does not contain any definitions of disturb or stampede, why the extent of the disturbance of a marine animal required to commit an offence under WCMA, sec. 13, seems uncertain. The definitions of disturb and stampede in the Concise Oxford Dictionary might indicate that WCMA, sec. 13, could be interpreted as criminalizing any behaviours of tourists or tourist activity organizers during marine tourist activities that interrupts or breaks the rest, calm or quiet of marine animals or that cause marine animals to act hurriedly. It thus seems as this could be seen as a legal environmental requirement in relation to marine tourist activities. 66 7.4.1.5 Possession of Marine Animals It appears clear that a tourist or tourist activity organizer who is in possession of any animal or trophy during a marine tourist activity within a marine national park and reserve, without written authorization from a KWS officer or authorization in the regulations under WCMA, as a main rule commits an offence under WCMA, sec. 13. There does not seem to be any authorization in the regulations under WCMA relating to this offence which is of relevance in relation to marine tourist activities. Furthermore, a tourist or tourist activity organizer who keeps a government trophy instead of reporting and handing this over to for example a KWS officer clearly seems to commit an offence under WCMA, sec. 39. Also a forfeiture offence seems to be committed under WCMA, sec. 42, if a tourist or tourist activity organizer possesses a trophy or government trophy without having a certificate of ownership. As mentioned above, the term animal seems broadly defined in WCMA and it therefore seems as this could be interpreted as including any kind of marine animals, for example turtles, starfish, sea-urchins, inhabited shells and living corals.369 The marine animals Green Marine Turtle, Hawksbill Turtle and Dugong, alive or dead, and any durable portion of these animals are included as trophies under WCMA. Since these kinds of animals, found within a marine national park and reserve, do not appear to have an owner, they also seem to be government trophies under WCMA. Furthermore, any marine animal seems to become a government trophy if, for example, any of the offences described in this subchapter is committed in relation to the animal. It thus seems as the offences described in this subchapter could be seen as legal environmental requirements in relation to marine tourist activities. 7.4.1.6 Written Authorization As mentioned above, behaviours of tourists and tourist activity organizers which are criminalized under WCMA, sec. 13, can be authorized through a written permission by a KWS officer. Such permissions could thus constitute exceptions from the legal environmental requirements in WCMA, sec. 13. WCMA and the regulations under this act do not specify substantive conditions for issuing such permissions. KWS officers therefore appears to have a margin of discretion when deciding whether or not to issue written permissions in relation to marine tourist activities and whether to take environmental considerations into account when doing this. A principle to guide KWS officers when issuing written permissions, found in the preamble of WCMA, might however possibly be that marine tourist activities only should be permitted to be conducted in a manner which is without prejudice to the proper management and conservation of the marine environment (see more under subchapter 8.4.1.8). Furthermore, the principle of sustainable development in the Constitution might entail that carrying capacities of ecosystems in the area should not be exceeded. In a written permission to a tourist or tourist activity organizer, a KWS officer seems to have possibility to include conditions of how marine tourist activities should be conducted. WCMA and the regulations under this act do not include any specifications in relation to the issuance of such conditions and KWS officers thus seem to have a margin of discretion concerning whether or not to include conditions in a written permission and which character these should have. It seems like KWS officers could for instance have possibility include environmental conditions in the permission. For example, if jet-skiing or dolphin-watching is considered to disturb marine animals under WCMA, sec. 13, it seems like KWS officers could issue written permissions to nonetheless undertake such marine tourist activities, including environmental conditions of how to conduct these in order to avoid disturbing marine animals. It might be possible to view such conditions as legal environmental requirements, but this seems uncertain. It should be noted that WCMA does not appear to criminalize 369 See subchapter 8.4.1.4 on whether it could include empty shells and calcareous skeletons of coral reefs. 67 contravening the conditions themselves. An offence only seems to be committed if a tourist or tourist activity organizer, when contravening the environmental condition in the written permission, simultaneously commits an offence under WCMA, sec. 13. This might mean that it is only environmental conditions in the written permission relating to behaviours which would otherwise be criminalized under WCMA, sec. 13, that could be seen as legally binding environmental requirements. Except in relation to the requirement of paying entry fees, respondents in Mombasa MNPR and Kisite Mpunguti MNPR do not mention that there are written permissions issued in relation to marine tourist activities under WCMA, sec. 13. This seems to indicate that there are no other exceptions made from legal environmental requirements in WCMA, sec. 13, in relation to marine tourist activities taking place within Mombasa MNPR and Kisite Mpunguti MNPR. This also appears to indicate that there are no legal environmental requirements prescribed in written permissions in these areas. It does however not seem possible to exclude the possibility that certain documents issued by KWS officers in Mombasa MNPR and Kisite Mpunguti MNPR could be seen as written permissions under WCMA, sec. 13. For example, the entry tickets could possibly be viewed as written permissions, not only to enter the marine national park and reserve, but also for example to disturb marine animals to a certain extent during marine tourist activities and that some of the doVDQGGRQ¶WVon the entry ticket (see Appendix 3) thus constitute legal environmental requirements. This however seems uncertain, since the entry ticket does not specifically provide this. 7.4.1.7 The Wildlife (Conservation and Management) (National Parks) Regulation According to the definition of national park in WCMR, sec. 2, WCMR only seems to apply to marine national parks and reserves where specified, unless the context otherwise requires. It is only in the prescription of entry fees that reference is made to marine national parks and reserves in WCMR. It should however be noted that the definition of national park in WCMR, sec. 2, refers to the definition to national park in WCMA, sec. 2, where this term includes marine national parks. This might entail that provisions of WCMR are applicable to marine national parks (not reserves) also when no reference is made to such areas and the context does not require this. This however seems unlikely, since WCMR, sec. 2, clearly appears to define that WCMR only applies to marine national parks and reserves where specified, unless the context otherwise requires. Does the context require that legal environmental requirements in provisions of WCMR, which do not refer to marine national parks and/or reserves, should apply to these areas? µUnless tKH FRQWH[W RWKHUZLVH UHTXLUHV¶ appears to relate to the context of the provision in WCMR. It does thus not seem to be the practical context within a marine national park and reserve that is of relevance to determine whether a provision in WCMR is applicable in these areas. The context of WCMR, sec. 5, does not seem to require that this provision is applicable within marine national parks and reserves. The provision seems to be specifically developed for terrestrial areas, since it makes reference to for example roads, vehicles on four wheels and speed limits in kilometres per hour. WCMR, sec. 4 and 6, are more generally formulated and seem relevant within marine as well as terrestrial national parks and reserves. There does however not seem to be anything in these provisions either that require that these apply within marine national parks and reserves. It thus seems unlikely that WCMR, sec. 4-6, constitute legal environmental requirements in relation to marine tourist activities. According to WCMR, sec. 3(2), it is possible to suspend a person from a national park if his presence is believed to be detrimental to its proper management and control. This power is found in the same provision of WCMR as the authorization to enter a marine national park and reserve upon payment of an entry fee (see subchapter 8.4.1.1). The context of WCMR, sec. 3(2), might therefore require that it applies to marine national parks and reserves. If WCMR, sec. 3(2), does apply to marine national parks and reserves, it might be possible to 68 interpret this provision as containing an legal environmental requirement, being that tourists and tourist activity organizers not are allowed to perform marine tourist activities in a manner which is detrimental to the proper management and control of a marine national park or reserve. This however seems uncertain, since it is not formulated as an imperative in the provision. 7.4.1.8 Allowed Marine Tourist Activities According to the empirical findings, KWS appears to regulate the type of marine tourist activities that are allowed to take place within Mombasa MNPR in two manners.370 Firstly, as mentioned above, MT can require consent from KWS before issuing tourism licenses. Secondly, KWS seems to use WCMR, sec. 3(2), to regulate the kind of marine tourist activities taking place.371 As mentioned in subchapter 8.2.1.1, if KWS does not give consent to the issuance of a tourism license, it seems like a licensing officer, because of this reason, could reject a tourist DFWLYLW\RUJDQL]HU¶Vapplication for such a license. Whether or not this could result in a legal environmental requirement appears to depend on whether environmental consideration is made by KWS when deciding to refuse to give consent. It seems like a similar reasoning could perhaps be made in relation the application of WCMR, sec. 3(2), in order to regulate the kind of marine tourist activities taking place within Mombasa MNPR. This provision might make it possible for KWS to suspend a tourist activity organizer if the marine tourist activity he wants to undertake could be detrimental to the proper management and control of the area. If this is the case, whether or not this could be seen as resulting in a legal environmental requirement also seems to depend on whether or not environmental considerations are made by KWS when allowing or disallowing the marine tourist activity to take place. WCMA and the regulations under this act do not appear to contain any provisions which specifically regulate the type of marine tourist activities allowed to take place within a marine national park and reserve. These legal acts neither seem to specifically provide which considerations that KWS should make in such cases. This is something which Officer E(M) mentions as a problem in practice. There might however be a general principle in the preamble of WCMA, which could be of relevance when KWS decides which kind of marine tourist activities to allow within a marine national park and reserve. According the preamble of WCMA, KWS seems to have a duty of ensuring that wildlife management and conservation fulfils various interests, for example social, economical and ecological, provided that these are without prejudice to proper wildlife management and conservation. WCMA does not define the term wildlife, why it seems uncertain whether this includes the marine environment. If this part of the preamble does apply to the marine environment, it could possibly be interpreted it in the following manner. According to the preamble of WCMA, it seems like KWS should optimize the returns from a marine national park and reserve, without prejudicing the proper management and conservation of the marine environment within this area. When KWS decides whether or not to allow marine tourist activities to take place, various interests thus appear relevant to take into consideration, for example social, economical and ecological factors. It seems like KWS could, for example, take into account the possibilities of tourist activity organizers and KWS to benefit from marine tourist activities and the environmental impacts that such activities could cause. However, when balancing different interests, proper management and 370 It is possible that KWS in Kisite Mpunguti MNPR regulates the kind of marine tourist activities that are allowed to take place in the same manner, but I have not been able to certify this. 371 It seems uncertain whether WCMR, sec. 3(2), applies within marine national parks and reserves, see subchapter 8.4.1.7 and 8.4.2. 69 conservation seems to take precedence over other interests. This could thus mean that, according to the preamble of WCMA, marine tourist activities should only be allowed to be conducted within a marine national park and reserve if they are without prejudice to the proper management and conservation of the marine environment. As mentioned, it however appears uncertain whether the preamble of WCMA could be interpreted in this manner. Furthermore, the principle of sustainable development in the Constitution might possibly entail that KWS should not allow marine tourist activities to take place if the carrying capacity of marine ecosystems in the area would be exceeded. According to the empirical findings, there appear to be various factors influencing which kind of marine tourist activities that are allowed to take place within Mombasa MNPR. Examples of factors mentioned by respondents are the kind of marine tourist activities that have taken place in the areas historically, their environmental impact, environmental conditions in the areas and needs to make compromises with tourist activity organizers. Proper management and conservation of the marine environment seems to be one factor that is taken into consideration by KWS, but it does not seem like this necessarily takes precedence over other interests. If KWS, because of environmental consideration, refuses to give consent to the issuance of a tourism license, it seems like this could result in a legal environmental requirement under TILA (see more under subchapter 8.2.1.1). Furthermore, if a tourist activity organizer is suspended from a marine national park and reserve under WCMR, sec. 3(2), because KWS, of environmental consideration, decides not to allow the kind marine tourist activity he wants to undertake, this might possibly also result in a legal environmental requirement. According to the above reasoning, it does however not seem possible to determine from the legal acts which considerations that should be made by KWS when allowing or disallowing marine tourist activities to take place. 7.4.2 Enforcement According to the empirical findings, KWS seems to primarily enforce the environmental requirements mentioned by the respondents in Mombasa MNPR and Kisite Mpunguti MNPR in relation to marine tourist activities. KWS does thus not appear to strictly enforce the legal environmental requirements identified in WCMA and the regulations under this act, they appear to concentrate on those environmental requirements which are mentioned by the respondents in the respective area (see more in subchapter 8.4.3). According to WCMA, KWS appears to have responsibility of supervising tourist activity organizers¶ and tourists¶ compliance with the legal environmental requirements identified in WCMA and the regulations under this act during marine tourist activities. Authorized officers, including for example KWS officers, seem to have powers in WCMA to perform investigations for this purpose. According to the empirical findings, KWS officers seem to perform supervision of marine tourist activities through daily patrols within Mombasa MNPR and Kisite Mpunguti MNPR. During these patrols they appear to supervise tourist activity organizers¶, and to some extent tourists¶, compliance with the environmental requirements mentioned by the respondents in the areas. According to the majority of the respondents, it seems like KWS officers generally prioritize supervising that tourists and tourist activity organizers have paid entry fees. KWS officers however also to some extent seem to supervise WRXULVWV¶DQGWRXULVWDFWLYLW\RUJDQL]HUV¶ compliance with other environmental requirements. If a tourist or tourist activity organizer is suspected of having committed an offence under WCMA or the regulations under this act, KWS officers seem to have possibility to arrest and prosecute the person according to WCMA. The sanctions prescribed are fine or imprisonment. Furthermore, it seems like any permission issued under WCMA could be cancelled and any things relating to the offence could be forfeited to the state. It does however not seem mandatory for KWS officers to arrest and/or prosecute a tourist or tourist activity organizer 70 suspected of having committed an offence under WCMA or the regulations under this act. KWS officers seem to have a margin of discretion when deciding how to handle such cases. According to the empirical findings in Mombasa MNPR and Kisite Mpunguti MNPR, it seems unusual that tourists or tourist activity organizers are prosecuted for violating legal environmental requirements during marine tourist activities. The empirical findings seem to indicate that KWS primarily prosecutes tourist activity organizers suspected of having contravened the legal environmental requirement of paying an entry fee. KWS does not seem to prosecute tourists for violating legal environmental requirements during marine tourist activities, according to the empirical findings. As mentioned under subchapter 8.4.1.7, KWS officers might have a possibility to suspend a tourist or tourist activity organizer from a marine national park and reserve according to WCMR, sec. 3(2). If WCMR, sec. 3(2), does apply to marine national parks and reserves, it does not seem mandatory for KWS officers to suspend anyone whose presence is believed to be detrimental to the proper management and control of a marine national park and reserve. KWS officers thus appear to have a margin of discretion when deciding how to use this power. According to the empirical findings, WCMR, sec. 3(2), seems to be applied by KWS officers in Mombasa MNPR and Kisite Mpunguti MNPR to enforce some of the environmental requirements KWS applies in the areas (see more under subchapter 8.4.3). WCMR, sec. 3(2), primarily appears to be applied in relation to tourist activity organizers if the behaviour is considered serious by the KWS officer and the time period of the suspension seems to depend on the KWS RIILFHU¶V perception of the seriousness of the behaviour. It does not seem like KWS officers in Mombasa MNPR or Kisite Mpunguti MNPR apply WCMR, sec. 3(2), in relation to tourists. A function of KWS, according to WCMA, is also to give education and create public awareness on wildlife conservation. According to the empirical findings, KWS in Mombasa MNPR and Kisite Mpunguti MNPR appear to use education and awareness rising as central mechanisms to ensure that tourists and tourist activity organizers comply with the environmental requirements KWS applies in the areas. Tourist activity organizers in Mombasa MNPR and Kisite Mpunguti MNPR appear to be informed these environmental requirements through for example educations, meetings and workshops, according to the empirical findings. If KWS officers notice a tourist activity organizer violating the environmental requirements, they normally seem to educate him and give a warning. Furthermore, various information materials also seem to inform tourists and tourist activity organizers of environmental requirements. In relation to tourists, KWS in Mombasa MNPR and Kisite Mpunguti MNPR mainly seem to use education to enforce environmental requirements, according to the empirical findings. Finally, collaboration between KWS and tourist activity organizers also appears to have a central role in ensuring compliance with the environmental requirements KWS applies in relation to marine tourist activities within Mombasa MNPR and Kisite Mpunguti MNPR, according to the empirical findings. Tourist activity organizers seem to have a central role in informing tourists about the environmental requirements and in supervising that tourists comply with these during marine tourist activities. Tourist activity organizers also seem to have a role in supervising other tourist activity organizers compliance with these environmental requirements. According to the empirical findings, it seems like behaviours which are perceived serious by tourist activity organizers are reported to KWS. In Mombasa MNPR, tourist activity organizers also seem to have own common norms with environmental requirements, which also could be seen as having a role in enforcing the environmental requirements which KWS applies and also legal environmental requirements, according to the empirical findings (see more under subchapter 8.5). 71 7.4.3 Relation between Norms of the Kenya Wildlife Service and Legal Rules KWS in Mombasa MNPR and Kisite Mpunguti MNPR appears to demand tourists and tourist activity organizers to comply with the environmental requirements which are mentioned by respondents in the respective area during marine tourist activities. The purpose of this subchapter is to, on a general level, create an understanding of how these environmental requirements seem to relate to legal environmental requirements. It should be noted that the analysis in this subchapter is made on a general level and constitutes a simplification of something which in reality seems complex. The environmental requirements which are applied by KWS in Mombasa MNPR and Kisite Mpunguti MNPR seem to be found in sources with varying degrees of formality. Some environmental requirements seem to be applied by KWS in both Mombasa MNPR and Kisite Mpunguti MNPR, meanwhile other environmental requirements seem to differ between the areas. In order to enable a general analysis, the environmental requirements which KWS demands tourists and tourist activity organizers to comply with during marine tourist activities, which are not clearly derived directly from legislations, regulations or licenses, are KHUHLQDIWHUFROOHFWLYHO\UHIHUUHGWRDVµ.:6¶VQRUPV¶ 0RVW RI WKH HQYLURQPHQWDO UHTXLUHPHQWV LQ .:6¶V QRUPV VHHP WR FRUUHODWH WR OHJDO environmental requirements. When enforcing environmental requirements LQ.:6¶VQRUPV, compliance thus simultaneously appears to be ensured with legal environmental requirements. As an illustration, the following figure is intended to show examples of how a few environmental UHTXLUHPHQWV LQ .:6¶V QRUPV VHHP WR FRUUHODWH WR WKH OHJDO HQYLURQPHQWDO requirement of not disturbing marine animals (WCMA, sec. 13). As previously mentioned, it seems like WCMA, sec. 13, could be interpreted as criminalizing any behaviours of tourists or tourist activity organizers during marine tourist activities which interrupts or breaks the rest, calm or quiet of marine animals or which cause marine animals to act hurriedly. It seems like various behaviours during marine tourist activities could cause such reactions to marine animals and thus constitute an offence under WCMA, sec. 13. The figure is therefore also intended to illustrate that the legal environmental requirement of not disturbing marine animals appears more broadly defined than the environmenWDOUHTXLUHPHQWVLQ.:6¶VQRUPV Compliance thus only appears to be ensured with part of the legal environmental requirement ZKHQHQIRUFLQJHQYLURQPHQWDOUHTXLUHPHQWVLQ.:6¶VQRUPV Figure 3. This figure illustrates how environmental requirements iQ .:6¶V QRUPV VHHP WR FRUUHODWH WR WKH OHJDO environmental requirement of not disturbing marine animals in WCMA, sec. 13. The circles illustrate environmental requirements and the gray square illustrates the scope of the legal environmental requirement. Note however that the illustration is simplified and not according to scale. As mentioned above, the environmental requirements that KWS demands tourists and tourist activity organizers to comply with during marine tourist activities seem to be found in sources with varying degrees of formality. The following analysis is on a general level intended to illustrate examples of how environmental requirements that KWS enforces seem to relate to legal environmental requirements. Legal Rules .:6¶V1RUPV Do not anchor at coral reefs Do not pick and show marine life Do not touch marine life Do not disturb marine animals, WCMA, sec. 13 Do not swim with dolphins 72 Figure 4. This figure is intended to illustrate examples of how environmental requirements that KWS demands tourists and tourist activity organizers to comply with during marine tourist activities relate to legal environmental requirements. The circles illustrate environmental requirements, the dotted lines illustrate correlations between environmental requirements and the arrows illustrate that environmental requirements LQ.:6¶VQRUPVFRXOGEHYLHZHGDVSDUWRIOHJDOUXOHV KWS sometimes appears to enforce the environmental requirement of paying an entry fee through prosecution. The violation of this requirement thus appears connected to the predetermined sanctions fine or imprisonment. It thus seems clear that KWS in this case enforces a legal environmental requirement in WCMA, sec. 13, or WCMR, sec. 3 (illustrated by A in Figure 4). It does not seem possible to exclude the possibility that some environmental requirements LQ.:6¶VQRUPVcould fall outside the scope of legal environmental requirements. If that is the case, it seems as thesHHQYLURQPHQWDOUHTXLUHPHQWVLQ.:6¶VQRUPVshould be perceived as more informal norms, which do not clearly relate to legal environmental requirements (illustrated by B in Figure 4). It appears more uncertain whether KWS, when enforcing environmental requirements in .:6¶V QRUPVZKLFK VHHP WR FRUUHODWH WR OHJDO HQYLURQPHQWDO UHTXLUHPHQWV HQIRUFHV OHJDO rules or more informal norms. KWS does not appear to have a delegated power to issue VXEVLGLDU\ OHJLVODWLRQVDQG WKHHQYLURQPHQWDO UHTXLUHPHQWV LQ.:6¶VQRUms do not seem to have been prescribed as legally binding conditions in written permissions or licenses. The HQYLURQPHQWDO UHTXLUHPHQWV LQ .:6¶V QRUPV GR WKHUHIRUH QRW DSSHDU WR EH adopted or prescribed in a manner required to become legal sources. It however seems like it might be possible to view HQYLURQPHQWDO UHTXLUHPHQWV LQ .:6¶V QRUPV DV VSHFLILFDWLRQV RI KRZ tourists and tourist activity organizers should behave in order to comply with for example WCMA, sec. 13. When KWS enforces environmental requirePHQWVLQ.:6¶VQRUPVWKURXJK supervision, education and warnings, it thus seems like KWS could be viewed enforcing legal environmental requirements (illustrated by C in Figure 4). It however appears PRUHXQFHUWDLQZKHWKHUHQYLURQPHQWDOUHTXLUHPHQWVLQ.:6¶s norms could be viewed as part of for example WCMA, sec. 13, when considering the sanctions ZKLFKDSSHDUWREHFRQQHFWHGWRDYLRODWLRQRIFHUWDLQHQYLURQPHQWDOUHTXLUHPHQWVLQ.:6¶V norms. If KWS strictly enforced WCMA, sec. 13, a tourist or tourist activity organizer violating the environmental requirement would risk the predetermined sanctions fine or imprisonment. According to the empirical findings, violations of certain environmental UHTXLUHPHQWVLQ.:6¶VQRUPVrather seem connected to the sanction suspension. This might LQGLFDWH WKDW WKHVHHQYLURQPHQWDO UHTXLUHPHQWV LQ.:6¶VQRUPVVKRXOG rather be viewed as more informal norms (illustrated by D in Figure 4). It could also indicate that these HQYLURQPHQWDOUHTXLUHPHQWVLQ.:6¶VQRUPVVKRXOGEHSHUFHLYHGDV.:6¶VLQWHUSUHWDWLRQRI a legal environmental requirement in WCMR, sec. 3(2), rather than WCMA, sec. 13 (illustrated by E in Figure 4).372 This could also be the case with environmental requirements 372 As mentioned in subchapter 8.4.1.7 and 8.4.2 it seems uncertain whether WCMR, sec. 3(2), applies within marine national parks and reserves and whether it fulfils the fundamental features of norms, which might mean that this reasoning is not correct. Legal Rules .:6¶V1RUPV WCMA, sec. 13 WCMR, sec 3 (2) WCMA, sec. 13 + WCMR sec 3 A B C D F E 73 LQ.:6¶VQRUPVZKLFKDSSHDUWRIDOORXWVLGHWKHVFRSH of for example WCMA, sec. 13, but which seem to be enforced through WCMR, sec. 3(2) (illustrated by F in Figure 4). The above reasoning appears to illustrate that it is difficult to determine whether the environmental requirements which KWS demands tourists and tourist activity organizers to comply with during marine tourist activities form part of legal rules or are more informal norms. The eQYLURQPHQWDOUHTXLUHPHQWVLQ.:6¶VQRUPVVHHPWRUHODWHWR and interact with legal environmental requirements in various manners. It seems like the environmental requirements applied by KWS in Mombasa MNPR and Kisite Mpunguti MNPR comprises a greyscale, from legal to more informal norms. 7.5 Norms of Tourist Activity Organizers in Mombasa 7.5.1 Environmental Requirements Tourist activity organizers in Mombasa MNPR, as members of the MBOAs, seem to have requirements of how marine tourist activities should be conducted in order to avoid harming the marine environment, according to the empirical findings. With Baier & SvenVVRQV¶ fundamental features of norms in mind, these requirements seem to form directives of how tourist activity organizers should behave, appear to be communicated to the members of the MBOAs and seem to form tourist activity organizers¶ perception of how they, as members of the MBOAs, are expected to behave. Tourist activity organizers, through the MBOAs, thus appear to have own collective norms with environmental requirements which they should comply with during marine tourist activities. These norms are hereinafter collectively referred WRDVµ0%2$V¶ QRUPV¶ According to the empirical findings, a group of tourist activity organizers, who have participated in Project Explore the Ocean Together, also seem to have requirements of how marine tourist activities should be conducted in order to avoid harming the marine environment through this project. $JDLQ ZLWK %DLHU  6YHQVVRQV¶ IXQGDPHQWDO IHDWXUHV RI norms in mind, these requirements also seem to form directives of how tourist activity organizers should behave, appear to be communicated to the tourist activity organizers through the project and it seems like this group of tourist activity organizers perceive that they are expected to adhere to these requirements. It thus seems like a group of tourist activity organizers, through Project Explore the Ocean Together, have collective norms with environmental requirements which they should comply with during marine tourist activities. These norms appear to form a norm system separate from 0%2$V¶ QRUPVDQG.:6¶VQorms, since attributes such as for example their origin and creation appears WRGLIIHU IURP.:6¶V norms and 0%2$V¶ QRUPV7KHVH QRUPV DUH KHUHLQDIWHU UHIHUUHG WR DV µ([SORUH WKH2FHDQ 7RJHWKHU¶VQRUPV¶ 7.5.2 Enforcement Environmental requirements in MBOAs¶ norms seem to be enforced primarily by tourist activity organizers, according to the empirical findings. The members of the MBOAs seem to supervise each other¶V compliance with these environmental requirements during marine tourist activities. If a member violates an environmental requirement in 0%2$V¶ norms, he appears to be informed of this and could be given warnings by the MBOA. If a tourist activity organizer continues to violate the environmental requirement after warnings, it seems like he could be suspended from the MBOA, according to the empirical findings. Since a tourist activity organizer seems required, by KWS and the MBOAs, to be a member of an MBOA in order to undertake marine tourist activities, the suspension seems to entail that he is not allowed to undertake marine tourist activities within Mombasa MNPR during the suspension. If the tourist activity organizer would refuse to accept the suspension from the MBOA, it seems like KWS could get involved to suspend the tourist activity organizer from Mombasa 74 MNPR by applying WCMR, sec. 3(2), according to the empirical findings (see more in subchapter 8.5.3). Environmental requirements in E[SORUHWKH2FHDQ7RJHWKHU¶VQRUPVappear to be enforced by KWS and Trainer, through for example organizing trainings and workshops, providing information materials and reminding tourist activity organizers of these environmental requirements, according to the empirical findings.373 Since most of the environmental UHTXLUHPHQWVLQ([SORUHWKH2FHDQ7RJHWKHU¶VQRUPVseem similar to those in 0%2$V¶ norms DQG.:6¶VQRUPVit seems like environmental requirements in ([SORUHWKH2FHDQ7RJHWKHU¶V norms might also be enforced through 0%2$V¶ norms and/or .:6¶VQRUPV 7.5.3 Relation between Norms of Tourist Activity Organizers and Legal Rules The purpose of this subchapter is to, on general level, create an understanding of how environmental requirements in 0%2$V¶ QRUPV DQG ([SORUH WKH 2FHDQ 7RJHWKHU¶V QRUPV relate to legal environmental requirements. It should be noted that the analysis constitutes a simplification of something which in reality seems non-formalized and complex. Most of the environmental requirements in 0%2$V¶ norms and Explore the Ocean 7RJHWKHU¶V QRUPV appear to correlate to legal environmental requirements. When enforcing environmental requirements in 0%2$V¶ QRUPV DQG ([SORUH WKH 2FHDQ 7RJHWKHU¶V norms, compliance thus simultaneously seems to be ensured with legal environmental requirements. Figure 5 is intended to illustrate examples of how a few environmental requirements in 0%2$V¶ QRUPV DQG ([SORUH WKH 2FHDQ 7RJHWKHU¶V QRUPV VHHP WR FRUUHODWH WR WKH legal environmental requirement of not disturbing marine animals (WCMA, sec. 13). The figure is also intended to illustrate that, by enforcing these environmental requirements, compliance simultaneously seems to be ensured with part of the legal environmental requirement. Figure 5. This figure illustrates how a few environmental requirements in 0%2$V¶ norms and Explore the Ocean 7RJHWKHU¶V norms seem to correlate to the legal environmental requirement of not disturbing marine animals in WCMA, sec. 13. The circles illustrate environmental requirements and the gray square illustrates the scope of the legal environmental requirement. The illustration is simplified and not according to scale. As mentioned in the previous subchapter, KWS seems involved in enforcing environmental requirements in 0%2$V¶ norms, according to the empirical findings. Figure 6 is intended as an illustration of how 0%2$V¶ QRUPV.:6¶VQRUPV and legal rules seem to relate to each other in these cases. As in subchapter 8.4.3.:6¶VQRUPVDUHLOOXVWUDWHGDWDGLIIHUHQWOHYHO than the legal rules, in order to make the analysis clearer. 373 The tourist activity organizers might also enforce these environmental requirements, but I have not been able WRFHUWLI\KRZWKLVGLIIHUVIURPWKHHQIRUFHPHQWRI0%2$V¶QRUPV Do not touch Do not harass Do not pick Legal Rules Explore the Ocean 7RJHWKHU¶V Norms 0%2$¶V1RUPV Do not touch Do not harass Do not remove Do not disturb marine animals, WCMA, sec. 13 75 Figure 6. This figure illustrates how requirements in MB2$V¶ QRUPV.:6¶VQRUPVDQGOHJDOUXOHVVHHPWRUHODWHWRHDFK other when KWS enforces a decision of an MBOA to suspend a tourist activity organizer, as a sanction for violating an environmental requirement in 0%2$V¶ norms. According to the empirical findings, it seems like the MBOAs can contact KWS in case a tourist activity organizer, who has violated an environmental requirement in 0%2$V¶ norms, refuses to accept a suspension as a disciplinary measure from the MBOA. It seems like a KWS officer handling such a case functions fairly similar to a court, according to the empirical findings. If he decides to follow the decision of the MBOA, it seems like he could be seen as applying norms at two or three levels and that the relation between these, in a simplified manner, could be described as follows. If the environmental requirement which the tourist activity organizer has violated is only found in 0%2$V¶ norms, the KWS officer seems to apply norms at three levels (illustrated by A in Figure 6). At the first level, the KWS officer seems to apply the environmental requirement in 0%2$V¶ norms. It does not, according to the empirical findings, seem necessary that a similar environmental requirement LV IRXQG LQ.:6¶VQRUPVRU WKH OHJDO UXOHVAt the second level, the KWS officer seem to apply a requirement in .:6¶V QRUPV of being a member of an MBOA, and to follow 0%2$V¶ norms, in order to be permitted to perform marine tourist activities. At the third level, the KWS officer seems to apply WCMR, sec. 3(2), which as earlier mentioned above might perhaps constitute a legal environmental requirement.374 It thus seems as the KWS officer perceives the presence of a tourist activity organizer, who does not comply with environmental requirements in 0%2$V¶ norms, as detrimental to the proper management and control of Mombasa MNPR. If the tourist activity organizer has contravened an environmental requirement in 0%2$V¶ norms, which correlates to a similar environmental requirement in .:6¶V QRUPV WKH.:6 officer could be seen as either applying norms at three levels, similarly as described above (illustrated by B in Figure 6), or applying norms at WZR OHYHOVQDPHO\D VLPLODUHQYLURQPHQWDO UHTXLUHPHQW LQ.:6¶VQRUPVDQG:&05VHF 3(2) (illustrated by C in Figure 6). Through the collaboration between the MBOAs and KWS, it thus seems as the environmental requirements in 0%2$V¶ norms indirectly can be enforced through WCMR, sec. 3(2). With Hydéns reasoning in mind, it seems like the environmental UHTXLUHPHQWV LQ 0%2$V¶ QRUPV WKURXJh this collaboration, could be viewed as being somewhat reinforced in practice. 374 As mentioned in subchapter 8.4.1.7 and 8.4.2 it seems uncertain whether WCMR, sec. 3(2), applies within marine national parks and reserves and whether it could be seen as a legal environmental requirement. env. req. env. req. Legal Rules KWS¶V1RUPV 0%2$¶V1RUPV env. req. Follow 0%2$¶V norms WCMR, sec 3 (2) B A C 76 8 Conclusions and Reflections In the first four sub chapters beneath, the conclusions of this essay are summarized and a few reflections are made. In the fifth subchapter, suggestions for how the knowledge gained through this study could be taken one step further through further research are presented. 8.1 Legal Environmental Requirements There are legal environmental requirements which tourists and tourist activity organizers must comply with during marine tourist activities. These are primarily found in provisions prescribing offences in WCMA and EMCA, including regulations under these acts. Legal environmental requirements that tourists and tourist activity organizers must comply with in WCMA and regulations under this act seem to be that it is, as a main rule, prohibited to: enter or reside in a marine national park or reserve without paying an entry fee; injure marine vegetation; damage or attempt to remove any marine object of scientific interest; disturb, stampede or possess any marine animal. Exceptions can be made from most of these legal environmental requirements and KWS officers appear to have a margin of discretion when making such exceptions. In practice there appear to be various exceptions from the requirement of paying an entry fee in Mombasa MNPR, meanwhile exceptions from this requirement seem less common in Kisite Mpunguti MNPR. It seems uncertain whether tourists or tourist activity organizers are given written permissions with exceptions from other legal environmental requirements by KWS in Mombasa MNPR and Kisite Mpunguti MNPR. EMCA and regulations under this act contain legal environmental requirements prohibiting pollution of the marine environment during marine tourist activities. Furthermore, a tourist activity organizer could be required to undertake measures to minimize impacts from pollution. TA will also contain a prohibition against polluting the environment. It however appears uncertain whether this will result in any additional requirement of how to perform marine tourist activities compared to EMCA. There might also be other legal environmental requirements that tourists and/or tourist activity organizers must comply with during marine tourist activities. It seems like KWS officers might have a possibility to include legal environmental requirements of how tourist and tourist activity organizers should behave during marine tourist activities in written permissions under WCMA. It however appears uncertain whether such legal environmental requirements are prescribed in practice in Mombasa MNPR or Kisite Mpunguti MNPR. Furthermore, WCMR could possibly be seen as containing a legal environmental requirement, being that tourists and tourist activity organizers should not perform marine tourist activities in a manner which is detrimental to the proper management and control of a marine national park or reserve. In practice, it seems like the application of this provision could be seen as resulting in legal environmental requirements, for example through regulating the kind of marine tourist activities allowed to take place within Mombasa MNPR. According to EMCA and regulations under this act, tourist activity organizers might be required to submit a project report to NEMA before undertaking certain marine tourist activities (e.g. jet-skiing) within marine national parks and reserves. This could in that case result in legal environmental requirements. In practice, tourist activity organizers do not seem to have issued project reports and there do thus not seem to be legal environmental requirements prescribed in EIA-licenses in relation to marine tourist activities taking place in Mombasa MNPR or Kisite Mpunguti MNPR. Furthermore, NEMA might have possibility to prescribe legal environmental requirements in improvement notices or restoration orders, which could in that case have a role in regulating marine tourist activities. Furthermore, the licensing of tourist activity organizers under TILA could perhaps lead to legal environmental requirements, but it seems uncertain whether it results in this in practice. 77 It does not seem like legal environmental requirements are prescribed in tourism licenses in relation to marine tourist activities taking place in Mombasa MNPR or Kisite Mpunguti MNPR. Whether the licensing of tourist activity organizers under TA will entail further legal environmental requirements than TILA appears unclear at this stage. As described in chapter 2, environmental goals and legal environmental requirements are interconnected. Mombasa MNPR and Kisite Mpunguti MNPR have the objective of conserving marine biodiversity. It does however not seem like this objective is clearly reflected as an environmental goal in WCMA or the regulations under this act, under which the marine areas are protected. The environmental goal prescribed in these legal acts rather appears developed for the terrestrial environment. Neither does it seem like the legal environmental requirements tourists and tourist activity organizers must comply with during marine tourist activities originally have been developed to achieve conservation of marine biodiversity. Environmental requirements directing tourists and tourist activity organizers behaviours during marine tourist activities, developed with the objective of conserving marine biodiversity, rather seem to be found in other sources than WCMA and the regulations under this act, such as codes of conduct applied by KWS. 8.2 Enforcement of Legal Environmental Requirements KWS is the government authority with the main responsibility of ensuring that tourists and tourist activity organizers to comply with legal environmental requirements during marine tourist activities in Mombasa MNPR and Kisite Mpunguti MNPR. KWS does however not in practice appear to strictly enforce the legal environmental requirements as identified in this essay. KWS in Mombasa MNPR and Kisite Mpunguti MNPR seem to concentrate on enforcing the environmental requirements mentioned by respondents in the respective area. $FFRUGLQJWR:&0$.:6VHHPVUHVSRQVLEOHRIVXSHUYLVLQJWRXULVWDFWLYLW\RUJDQL]HUV¶ DQG WRXULVWV¶ FRPSOLDQFH ZLWK OHJDO HQYLURQPHQWDO UHTXLUHPHQWV LQ :&0$ DQG WKH regulations under this act during marine tourist activities. In practice, KWS performs such supervision through daily patrols within Mombasa MNPR and Kisite Mpunguti MNPR. KWS RIILFHUV JHQHUDOO\ VHHP WR SULRULWL]H VXSHUYLVLQJ WRXULVWV¶ DQG WRXULVW DFWLYLW\ RUJDQL]HUV¶ compliance with the legal environmental requirement of paying an entry fee. KWS officers however also to some extent supervise their compliance with other legal environmental requirements. According to WCMA, tourists or tourist activity organizers, who violate legal environmental requirements in WCMA or regulations under this act during marine tourist activities, could in most cases be prosecuted. KWS officers however have a margin of discretion when deciding how to handle such cases. In practice it seems unusual that prosecution is used by KWS as a mechanism to ensure compliance with legal environmental requirements during marine tourist activities. It appears like this mechanism is primarily used in relation to tourist activity organizers who violate the requirement of paying an entry fee. It seems like KWS might have possibility to suspend a tourist or tourist activity organizer from a marine national park and reserve according to WCMR, which could in that case be used to enforce legal environmental requirements. In practice, suspension is used by KWS in Mombasa MNPR and Kisite Mpunguti MNPR to ensure that tourist activity organizers comply with some of the environmental requirements that KWS demands them to comply with during marine tourist activities. According to WCMA, it also seems like KWS should give education and create public awareness on conservation issues. In practice, such incentives have a central role in ensuring that tourists and tourist activity organizers comply with legal environmental requirements during marine tourist activities in Mombasa MNPR and Kisite Mpunguti MNPR. If a tourist 78 or tourist activity organizer violates legal environmental requirements he would normally be educated and a tourist activity organizer could also be given a warning. Collaboration between KWS and tourist activity organizers also has a central role in ensuring that tourists and tourist activity organizers comply with legal environmental requirements during marine tourist activities in Mombasa MNPR and Kisite Mpuguti MNPR. Tourist activity organizers have a central role in informing tourists and other tourist activity RUJDQL]HUV RI HQYLURQPHQWDO UHTXLUHPHQWV DQG LQ VXSHUYLVLQJ WRXULVWV¶ DQG RWKHU WRXULVW DFWLYLW\RUJDQL]HUV¶FRPSOLDQFHZLWKWKHVHIn Mombasa MNPR, KWS also encourages tourist activity organizers to regulate their own behaviours through environmental requirements in own norms. ,WVHHPVOLNHVXSHUYLVLRQRIWRXULVWV¶DQGWRXULVWDFWLYLW\RUJDQL]HUV¶FRPSOLDQFHZLWKOHJDO environmental requirements in EMCA and regulations under this act during marine tourist activities should be performed in collaboration between NEMA and KWS, according to EMCA. The Kenyan public could also be seen as having a role in performing supervision under EMCA. In practice, it is primarily KWS of the government agencies which supervises marine tourist activities undertaken within Kisite Mpunguti MNPR and Mombasa MNPR. According to EMCA, environmental inspectors at NEMA have possibility to prosecute a tourist or tourist activity organizer suspected of having violated a legal environmental requirement in EMCA or a regulation under this act. In practice, it however appears unlikely that tourists or tourist activity organizers would be prosecuted by environmental inspectors. NEMA might also have possibility to issue improvement notices or restoration orders under EMCA in order to ensure compliance with legal environmental requirements during marine tourist activities. Furthermore, EMCA recognizes the importance of awareness rising and education on environmental issues and, in practice, it mainly seems to be such incentives which are undertaken by NEMA to ensure that tourists and tourist activity organizers comply with legal environmental requirements during marine tourist activities. If TILA or the regulations under this act would result in legal environmental requirements in relation to marine tourist activities, it seems like these would be enforced by MT, primarily through supervision and prosecution. According to the above reasoning, it seems like legal possibilities exist to enforce tourists and tourist activity organizers to comply with the legal environmental requirements that have been identified in this essay. It does however not always seem to follow from the legislations exactly how legal environmental requirements are enforced in practice. 8.3 Environmental Requirements of Kenya Wildlife Service KWS in Mombasa MNPR and Kisite Mpunguti MNPR appears to demand tourists and tourist activity organizers to comply with the environmental requirements which are mentioned by respondents in the respective area during marine tourist activities. These environmental requirements are found in sources with varying degrees of formality. Some of the environmental requirements are applied by KWS in Mombasa MNPR as well as Kisite Mpunguti MNPR, meanwhile other environmental requirements differ between the areas. Most environmental requirements which KWS demands tourists and tourist activity organizers to comply in Mombasa MNPR and Kisite Mpuguti MNPR correlate to legal environmental requirements. When enforcing these environmental requirements, compliance therefore simultaneously is ensured with legal environmental requirements. Compliance however only appears to be ensured with part of the legal environmental requirements when only enforcing the environmental requirements mentioned by the respondents. The environmental requirements applied by KWS fulfil the fundamental features of norms described by Baier & Svensson. It however seems difficult to categorize these requirements as legal rules or more informal norms by using the attributes of legal rules described by Baier & 79 Svensson and Hydén. It rather seems like the environmental requirements applied by KWS comprise a greyscale of legal rules to more informal norms. The environmental requirements in practice appear relate to and interact with legal environmental requirements in various manners. 8.4 Environmental Requirements of Tourist Activity Organizers In Mombasa MNPR, tourist activity organizers have own collective norms with environmental requirements which they must comply with during marine tourist activities. These norms fulfil the fundamental features of norms described by Baier & Svensson. Two different norm systems have been identified LQ WKLV HVVD\0%2$V¶ QRUPV FDQbe seen as consisting of two norm V\VWHPV  DQG ([SORUH WKH 2FHDQ 7RJHWKHU¶V QRUPV 7KHVH QRUP systems have different attributes, such as their origin and creation, which differentiate them. EQYLURQPHQWDOUHTXLUHPHQWVLQ0%2$V¶QRUPVDUHSULPDULO\HQIRUFHGE\WRXULVWDFWLYLW\ organizers, for example through supervision, education, warnings and suspension. Collaboration however also exists between KWS and the MBOAs. Through this collaboration, HQYLURQPHQWDO UHTXLUHPHQWV LQ 0%2$V¶ norms can be enforced by KWS applying WCMR, sec. 3(2). This in practice appears to results in that environmental UHTXLUHPHQWVLQ0%2$V¶QRUPVFRXOGZLWK the illustration of Hydén in mind, be viewed as somewhat reinforced through a legal rule. (QYLURQPHQWDOUHTXLUHPHQWVLQ([SORUHWKH2FHDQ7RJHWKHU¶VQRUPVSULPDULOy seem to be enforced by KWS and Trainer, for example through education and workshops. Since HQYLURQPHQWDO UHTXLUHPHQWV LQ ([SORUH WKH 2FHDQ 7RJHWKHU¶V QRUPV VHHP WR UHVHPEOH environmental requirements applied by KWS and the MBOAs, the requirements might however also be enforced by these bodies. EQYLURQPHQWDOUHTXLUHPHQWVLQWRXULVWDFWLYLW\RUJDQL]HUV¶QRUPVVHHPWRFRUUHODWHWROHJDO environmental requirements. By enforcing these environmental requirements, tourist activity organizers are thus simultaneously enforced to comply with part of legal environmental requirements. In Kisite Mpunguti MNPR, it does not seem like tourist activity organizers have own collective norms with environmental requirements that they must comply with during marine tourist activities. 8.5 Suggestion for Further Research I have encountered several issues during this study that I believe would be interesting to further examine. What I find most fascinating is the prominent role of more informal norms, such as codes of conduct, in the regulation of tourist activities in Kenya. Such norms appear to be developed by various stakeholders, for example tourism associations and government agencies. What I, as a law student, find would be interesting to further examine is how Kenyan government agencies use such more informal norms most appropriately in order to achieve environmental goals. During the minor field study, I noticed benefits as well as disadvantages of that government agencies implement both legal rules and more informal norms. In comparison with legal rules, the more informal norms appeared more flexible and could easier be adapted to local environmental conditions. These norms also seemed to have a higher legitimacy among local stakeholders. A problem however seemed to be that local interests sometimes seemed to be prioritized over environmental protection. I also noticed that the use of such more informal norms by government agencies could lead to a weakened rule of law. Furthermore, different codes of conduct appeared to have been developed by different government agencies, which might in practice result in an impaired normative effect. 80 Some of the pros and cons of more informal norms that I noticed during the study seem to have been described by scholars in for examples sociology of law, environmental law and environmental management.375 Given the central role such more informal norms appear to have in regulating environmental impact from tourist activities in Kenya, it would be interesting to further investigate how to optimize the benefits of such norms, while avoiding their disadvantages. Questions that could be interesting for further research are for example: -­‐ What is suitable to regulate through informal norms and what is more adequate to regulate through legal rules? -­‐ How are informal norms and legal rules most suitably linked, coordinated and separated? -­‐ At which governance level and with the involvement of which stakeholders should such informal norms be developed? -­‐ How are informal norms most suitably enforced? 375 See for example Hydén, 2002, p. 30-35, and especially his book Hydén, Normvetenskap. See also for example Christiernsson, p. 54-58 and 60-63. 81 References Literature and Articles Baier, M, & Svensson, M, Om Normer, 1:1 ed, Liber 2009 (cit: Baier & Svensson) Bogdan, M, Komparativ Rättskunskap, 2:3 ed, Norstedts Juridik 2003 (cit: Bogdan) Kamau, E. C, Environmental Law and Self-Management by Industries in Kenya, Journal of Environmental Law, Vol. 17, No. 2, 2005, p. 229-244 (cit: Kamau) Christiernsson, A, Rättens Förhållande till Komplexa och Dynamiska Ekosystem ± En Studie om Rättsliga Förutsättningar för Adaptiv och Ekosystembaserad Reglering och Planering för Bevarandet av Biologisk Mångfald vid Jakt, Luleå Tekniska Universitet 2011 (cit: Christiernsson) Ebbesson, J, Internationell Miljörätt, 2 ed, Iustus Förlag 2000 (cit: Ebbesson) Esaiasson, P, Gilljam, M, Oscarsson, H & Wängnerud, L, Metodpraktikan ± Konsten att Studera Samhälle, Individ och Marknad, 2:3 ed, Norstedts Juridik 2005 (cit: Esaiasson et al) Frontani, H. G, Conflicts in Marine Protected Area Management, FOCUS on Geography, Vol. 48 No. 4, 2006, p. 17-24 (cit: Frontani) Honey, M, Ecotourism and Sustainable Development ± Who Owns Paradise?, 2 ed, Island Press 2008 (cit: Honey) Honey, M, & Gilpin, R, Tourism in the Developing World ± Promoting Peace and Reducing Poverty, United States Institute of Peace 2009 (2011-10-10), http://www.usip.org/files/resources/tourism_developing_world_sr233.pdf (cit: Honey & Gilpin) Hydén, H, Rättsregler ± En Introduktion till Juridiken, 5 ed, Studentlitteratur 2001 (cit: Hydén 2001) Hydén, H, Normvetenskap, Lunds Universitet 2002 (cit: Hydén, Normvetenskap) Hydén, H, Rättssociologi som rättsvetenskap, Studentlitteratur 2002 (cit: Hydén 2002) Ikiara, M, & Okech, C, Impact of Tourism on Environment in Kenya - Status and Policy, Kenya Institute for Public Policy Research and Analysis, Nov 2002 (2012-04-15), http://www.kippra.org/docs/DP19.pdf (cit: Ikiara & Okech) IUCN Eastern Africa Programme, Conservation of Coastal and Marine Biodiversity in the Eastern African Region ± Progress of Implementation of the Jakarta Mandate by the Contracting Parties to the Nairobi Convention, April 2001 (cit: IUCN Eastern Africa Programme) Jackson, T, The Law of Kenya, 3 ed, Kenya Literature Bureau 1988 (reprinted in 2009) (cit: Jackson) Kameri-Mbote, P, & Cullet, P, Biological Diversity Management in Africa - Policy Perspectives, International Environmental Law Research Center 1999 (2012-03-20), http://www.ielrc.org/content/w9902.pdf (cit: Kameri-Mbote & Cullet) Louka, E, International Environmental Law ± Fairness, Effectiveness, and World Order, 1 ed, Cambridge University Press 2006 (cit: Louka) 82 Michanek, G & Zetterberg, C, Den Svenska Miljörätten, 2 ed, Iustus Förlag 2008 (cit: Michanek & Zetterberg) Muthiga, N, (QIRUFHPHQWLQ.HQ\D¶V0DULQH3URWHFWHG$Uea Network, Executive Summary Presented at the Enforcement Session, Second International Tropical Marine Ecosystems Management Symposium 24th ± 27th March 2003 Manila Philippines, Ocean Docs 2003 (2011-12-20), http://www.oceandocs.org/bitstream/1834/772/1/KeMPAs.pdf (cit: Muthiga) Okech, R. N, Developing Urban Ecotourism in Kenyan Cities - A Sustainable Approach, Journal of Ecology and Natural Environment ,Vol. 1, No. 1, April 2009, p. 1-6 (2011-10- 10), http://www.academicjournals.org/jene/PDF/Pdf2009/April/Okech.pdf (cit: Okech) Okidi, C. O, Kameri-Mbote, P & Akech, M, Environmental Governance in Kenya - Implementing the Framework Law, 1 ed, East African Educational Publishers Ltd 2008 (cit: Okidi et al) Ransom, K. P. & Mangi, S. C, Valuing Recreational Benefits of Coral Reefs - The Case of Mombasa Marine National Park and Reserve, Kenya, Environmental Management, Vol. 45, 2010, p. 145-154 (cit: Ransom & Mangi) Salm, R. V, Integrating Marine Conservation and Tourism, International Journal of Environmental Studies, Vol. 25, No. 4, 1985, p. 229-238 (cit: Salm) Sandgren, C, Rättsvetenskap för Uppsatsförfattare ± Ämne, Material, Metod och Argumentation, 2 ed, Norstedts Juridik 2007 (cit: Sandgren) Sida, Development Cooperation Sweden and Kenya - Natural Resources and Environment, Sida 2010 (cit: Sida) Thompson, D, The Concise Oxford Dictionary of Current English, 9 ed, Oxford University Press 1995 (cit: Thompson) United Nations Environment Programme, Environmental Codes of Conduct, Technical Report No. 29, 1995 (cit: United Nations Environment Programme, 1995) Westerlund, S, En Hållbar Rättsordning ± Rättsvetenskapliga Paradigm och Tankevändor, Iustus Förlag 1997 (cit: Westerlund) Official Publications Government of the Republic of Kenya, Kenya Vision 2030 ± the Popular Version, 2007 (2012-04-15), http://www.vision2030.go.ke/cms/vds/Popular_Version.pdf (cit: Vision 2030) Republic of Kenya, National Environmental Management Authority, Draft, Environmental Management and Coordination Act (No 8 of 1999) - Environment Impact Assessment Guidelines and Administrative Procedures, November 2002 (2011-11-09), http://www.nema.go.ke/index.php?option=com_phocadownload&view=category&id=34:e ia-guidelines&Itemid=511 (cit: EIA Guideline) Republic of Kenya, Ministry of Tourism and Wildlife, National Tourism Policy, Final Draft, May 2006 (2012-02-10), http://www.tourism.go.ke/ministry.nsf/doc/Final_Draft_National_Tourism_Policy.pdf/$fil e/Final_Draft_National_Tourism_Policy.pdf (cit: National Tourism Policy) 83 Republic of Kenya, Ministry of Tourism, Strategic Plan 2008-2012 (2012-04-15), http://www.tourism.go.ke/ministry.nsf/doc/STRATEGIC_PLAN_2008%20- %202012.pdf/$file/STRATEGIC_PLAN_2008%20-%202012.pdf (cit: Strategic Plan 2008-2012) Republic of Kenya, Ministry of Forestry and Wildlife, Draft Wildlife Policy, 8 July 2011 (2012-02-18), http://www.forestryandwildlife.go.ke/wp- content/uploads/2011/08/Draft_Wildlife_Policy.pdf (cit: Wildlife Policy, 2011) Republic of Kenya, The Wildlife Bill, 2011, July 2011 (2011-10-10), http://www.forestryandwildlife.go.ke/wp-content/uploads/2011/08/Wildlife-Bill- 20111.pdf (cit: Wildlife Bill, 2011) Ministry of Tourism, Licensing in the Tourism Sector (2011-01-10), http://www.tourism.go.ke/ministry.nsf/doc/LICENCING%20IN%20THE%20TOURISM %20SECTOR-ICT.pdf/$file/LICENCING%20IN%20THE%20TOURISM%20SECTOR- ICT.pdf (cit: MT, Licensing in the Tourism Sector) Ministry of Tourism, Tourism License Requirements (2011-01-11), http://www.tourism.go.ke/ministry.nsf/doc/TOURISM%20LICENCE%20REQUIREMEN TS.pdf/$file/TOURISM%20LICENCE%20REQUIREMENTS.pdf (cit: MT, Tourism License Requirements) UN Department of Economic and Social Affairs, Johannesburg Declaration on Sustainable Development, 2004-12-15 (2012-11-15), http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POI_PD.htm (cit: JD) World Commission on Environment and Development, Our Common Future, UN Documents, 1987 (2011-11-06), http://www.un-documents.net/ocf-02.htm#I (cit: BR) Other Sources Ojienda, T, & Aloo, L. O, Researching Kenyan Law, Webpage of Hauser Global Law School Program, November 2006 (2012-03-07), http://www.nyulawglobal.org/globalex/Kenya.htm (cit: Ojienda & Aloo) Webpage of Bermuda Zoological Society, Sea Turtles (2012-05-31), https://bamz.org/files/researchproject/turtles1.pdf (cit: Webpage of Bermuda Zoological Society) Webpage of Convention on Biological Diversity, List of Parties (2011-09-14), http://www.cbd.int/convention/parties/list/ (cit: Webpage of CBD, List of Parties) Webpage of Convention on Migratory Species, Kenya - Format for Reports of Parties on Implementation of the Convention on the Conservation of Migratory Species of Wild Animals, January 2002 (2012-04-30), http://www.cms.int/bodies/COP/cop7/proceedings/pdf/national_reports/national_report_ke nya.pdf (cit: Webpage of CMS, Kenya - Format for Reports of Parties on Implementation of the Convention on the Conservation of Migratory Species of Wild Animals) Webpage of Convention on Migratory Species, Parties to the Convention on the Conservation of Migratory Species of Wild Animals and its Agreements, 1 September 2011 (2011-09- 14), http://www.cms.int/about/Partylist_eng.pdf (cit: Webpage of CMS, Parties to the Convention on the Conservation of Migratory Species of Wild Animals and its Agreements) 84 Webpage of Ecotourism Kenya, The Kenya Coast Code (2012-05-10), http://www.ecotourismkenya.org/downloads/The_Kenya_Coast_Code.pdf (cit: Webpage of Ecotourism Kenya) Webpage of GVI Kenya, Green Turtle Stranding, December 2011 (2012-05-04), http://gvikenya.wildlifedirect.org/category/turtle-research/ (cit: Webpage of GVI Kenya) Webpage of Kenya Maritime Authority, IMO Conventions (2012-04-30), http://www.maritimeauthority.co.ke/conventions.html (cit: Webpage of Kenya Maritime Authority) Webpage of Kenya Wildlife Service, General Information of Kisite/Mpunguti Marine Park and Reserve (Copy received from Global Vision International, Kisite, 2011-11-30) (cit: Webpage of KWS, General Information of Kisite/Mpunguti Marine Park and Reserve) Webpage of Kenya Wildlife Service, Park, Wildlife and Marine Code (2012-02-09), http://www.kws.org/info/regulations/rules.html (cit: Webpage of KWS, Park, Wildlife and Marine Code) Webpage of Kenya Wildlife Service, Facts about Kisite Mpunguti (2012-05-04), http://www.kws.org/parks/park_reserve_detail/Kisite_mpunguti/kisite_facts.html (cit: Webpage of KWS, Facts about Kisite Mpunguti) Webpage of Kenya Wildlife Service, Mombasa Marine Reserve (2012-05-04), http://www.kws.org/parks/parks_reserves/MMNR.html (cit: Webpage of KWS, Mombasa Marine Reserve) Webpage of Mombasa & Coast Tourist Association, Responsible Marine Tourism Practices (2012-05-10), http://www.kenyacoast.net/dmcc.htm (cit: Webpage of Mombasa & Coast Tourist Association) Webpage of The Energy & Biodiversity Initiative, International Conventions (2012-04-30), http://www.theebi.org/pdfs/conventions.pdf (cit: Webpage of The Energy & Biodiversity Initiative) Webpage of United Nations, Treaties (2011-09-14), http://treaties.un.org/Pages/showDetails.aspx?objid=0800000280043ad5 (cit: Webpage of United Nations, Treaties) Webpage of United Nations Environment Programme ± Regional Seas Programme, Legal Agreements Relating to the Marine Environment (2011-09-13), http://www.unep.ch/regionalseas/home/marenv.htm (cit: Webpage of United Nations Environment Programme, Legal Agreements Relating to the Marine Environment) Webpage of United Nations Environment Programme ± Regional Seas Programme, Eastern Africa (2012-04-30), http://www.unep.org/regionalseas/programmes/unpro/easternafrica/default.asp (cit: Webpage of United Nations Environment Programme, Eastern Africa) Webpage of WWF, Coastal Development Problems: Tourism (2011-11-30), http://wwf.panda.org/about_our_earth/blue_planet/problems/tourism/tourism_pressure/ (cit: Webpage of WWF) 85 Appendix 1 Respondents National Environment Management Authority Officer X, NEMA, Nairobi, 2011-12-19 (Approximately 45 min) Officer Y, Senior Environmental Education Information & Public Participation Officer, Coast Province, NEMA, Mombasa, 2011-12-08 (Approximately 50 min) Officer Z, Principal Officer, Coastal, Marine and Wetlands, NEMA, Nairobi, 2011-12-19 and 2012-01-06 (Informal conversation for approximately 10 min, interview via e-mail) Ministry of Tourism Officer T, Regional Tourism Officer, Mombasa Provincial Tourism Field Office, MT, Mombasa, 2011-10-16 (Approximately 45 min) Kenya Wildlife Service Officer A(M), KWS, Mombasa MNPR, 2011-11-16 (Approximately 30 min) Officer B(M), Sergeant, KWS, Mombasa MNPR, 2011-11-15, 2011-11-18 and 2011-12-08 (Approximately 45 min) Officer C(M), Ranger, KWS, Mombasa MNPR, 2011-11-15 (Approximately 30 min) Officer D(M), Coxswain, Mombasa MNPR, 2011-11-15 and 2011-11-16 (Approximately 60 min) Officer E(M), Senior Warden, KWS, Mombasa MNPR, 2011-12-15 (Approximately 90 min) Officer F(K), Ranger, KWS, Kisite Mpunguti MNPR, 2011-11-29 and 2011-12-01 (Approximately 30 min) Officer G(K), Ranger, KWS, Kisite Mpunguti MNPR, 2011-11-29 (Approximately 30 min) Officer H(K), Corporal, KWS, Kisite Mpunguti MNPR, 2011-11-29 (Approximately 50 min) Officer I(K), Warden, KWS, Kisite Mpunguti MNPR, 2011-11-29 and 2011-12-01 (Approximately 45 min) Tourist Activity Organizers Organizer A(M), Mombasa MNPR, 2011-11-15 (Approximately 10 min) MBOA(A), Mombasa MNPR, 2011-11-18. Group interview with two respondents (Approximately 60 min) MBOA(B), Mombasa MNPR, 2011-11-17, 2012-12-11 and 2012-12-13. Group interview with three respondents (Approximately 40 min) Organizer B(K), Kisite Mpunguti MNPR, 2011-11-29 (Approximately 15 min) Organizer C(K), Kisite Mpunguti MNPR, 2011-11-29 (Approximately 15 min) Organizer D(K), Kisite Mpunguti MNPR, 2011-11-29 (Approximately 15 min) Organizer E(K), Kisite Mpunguti MNPR, 2011-11-29 (Approximately 10 min) 86 Other Respondents Global Vision International (GVI), Shimoni, 2011-11-30. Group interview with two respondents (Approximately 60 min) North Coast Beach Operators Forum (NCBOF), Mombasa MNPR, 2011-12-12. Group interview with two respondents (Approximately 40 min) Trainer, Mombasa MNPR, 2011-12-05 (Approximately 60 min) 87 Appendix 2 Marine Wildlife Code376 -­‐ Check local weather and sea conditions before entering the marine park. -­‐ Some marine life is dangerous; do not touch anything under water. -­‐ Do not damage or remove corals. It is a living organism which takes many years to form and is host to many rare and endangered species. -­‐ Do not remove shells, starfish or any other sea ± flora or fauna. Removal is illegal, seriously disrupts the eco-system and some marine life is dangerous. The areas outside the parks and reserves is threatened by excessive shell collection. Empty shells provide homes for hermit crabs and some fish. -­‐ Do not buy shells and other marine animal products as souvenirs as this encourages further plundering of the reefs and beaches. -­‐ Never dispose of litter on the beach or in the sea. It is illegal and environmentally unfriendly. Marine turtles can confuse clear plastic waste with jelly fish and will die if they eat it. -­‐ Hand ± feeding of fish is discouraged. It disrupts normal feeding patterns. -­‐ Hook and line fishing is allowed in the Marine Reserves but prohibited in Marine Parks. Spear guns are not permitted for use in either. -­‐ Environmentally friendly activities such as snorkeling and diving are encouraged, under the supervision of the Kenya Wildlife Service wardens, who work closely with tour operators and hoteliers to ensure strict adherence to this code of practice. -­‐ Avoid restaurants that serve undersized crabs and lobsters as this contributes to their rapid demise. -­‐ Support traditional coastal livelihoods and do not give money to children on the beach, as this can encourage them to stay away from school. -­‐ Respect the cultural heritage of Kenya, never take pictures of the local people or their habitat without asking their permission, respect the cultural traditions of Kenya and always dress with decorum. 376 This code of conduct is published at the webpage of KWS, Park, Wildlife and Marine Code. A similar code RIFRQGXFWLVIRXQGLQ.:6¶VEURFKXUHVIRU.LVLWH0SXQJXWL0135DQG Mombasa MNPR. 88 Appendix 3 Entry Ticket377 Your Ticket -­‐ This ticket is proof of your entitlement to be in the park. -­‐ You must have a valid ticket for each day of entry. -­‐ Please be ready to show your tickets to any Ticket Inspection Unit. -­‐ Please hand in your complete ticket at exit. The gate ranger will detach the Exit Portion and return the visitors Portion for you to keep. -­‐ Not refundable or valid for re-entry. Kenya Wildlife Service .HQ\D:LOGOLIH6HUYLFHPDLQWDLQV.HQ\D¶VZLOGOLIHDQGDGPLQLVWHUVQDWLRQDOSDUNV- over 10 PLOOLRQDFUHVRIWKHZRUOG¶VJUHDWHVWZLOGlife areas. Our main source of Conservation income is your fee. It is used to maintain roads, protect animals from poachers, help neighboring communities that have wildlife on their land, research into wildlife conservation, and manage our parks. Dos and 'RQ·WV -­‐ Protect the marine environment. Please do not touch or stand on coral reefs. -­‐ Take all your litter with you, never dispose of it on the beach or in the sea. -­‐ Never buy or remove starfish, shells, or any products that derive from turtles, whales or other endangered species. -­‐ Avoid buying undersized crabs and lobsters. 377 This information is found on the backside of the entry ticket, 2011-12-01. 89 Appendix 4 Responsible Wildlife Watching, Code of Conduct378 -­‐ If dolphins are sighted, you should slow down gradually to no wake speed and maintain this speed until clear of the animals. -­‐ 'RQ¶WFKDVHWKHGROSKLQVFLUFOHWKHPRUGULYH\our boat directly toward them. -­‐ If you wish to approach the dolphins, do it very slowly, keeping parallel to their course and avoid sudden changes of direction or speed which could confuse or disorient them. -­‐ Do not drive through or between groups of dolphins. -­‐ Move away slowly if you notice signs of disturbance from the dolphins, such as erratic changes in speed and direction or lengthy periods under water. Slapping of the tail and/or head of the surface of the water may be a sign of distress. -­‐ Avoid dolphins with young and DO NOT make loud noises. -­‐ $OORZWKHDQLPDOVWRDSSURDFK\RX,IWKH\GRDSSURDFKDQGµERZULGH¶PDLQWDLQVWHDG\ speed and steady course. -­‐ If already in the water snorkeling, remain calm, no not get over excited, and let them approach you, instead you to them. -­‐ Try not to have more than 2 boats at one time at dolphin sightings and keep a distance of not less than 100 m of the animals. -­‐ Do not spend more than 20 minutes (at a time) with the animals (bear in mind the need of other operators who too want to offer their clients the opportunity). -­‐ Do not dispose of fuel or oil in the SEA/OCEAN and other contaminants. Dispose off in appropriate containers on board the boat or at your destination, not into the SEA. -­‐ Do NOT feed, touch or swim with the dolphins. 378 I got a copy of this code of conduct from Officer I(K), Warden, KWS, Kisite Mpunguti MNPR, 2011-12-01. This code of conduct was developed for Kisite Mpunguti MNPR in 2007 by KWS, United Nations Environment Programme and Convention of Migratory Species. Also tourist activity organizers in Kisite Mpunguti MNPR were involved in developing these. 90 Appendix 5 Kisite Marine Park & Mpunguti Marine Reserve, The Dolphin Watch379 Human Activities Dont chase the dolphins, circle them, or drive your boat directly towards them. Do not drive through or between groups of dolphins. Always ensure dolphins are not surrounded. Leave an obvious escape route for dolphins. Avoid dolphins with young or when mating. Do not feed, touch or swim with dolphins. Lack of Food due to Fishing Modern fishing methods, mid water traws, entangled in long-lines, costal gill nets & purse- seine nets endangering a number of costal species of dolphins & porpoise. Sea & Noise Pollution Do not make loud noises. Do not dispose off fuel, oil, plastic, metal or other contaminants in the sea-ocean. Dispose off litter in appropriate containers on board the boat or at your destination, not into the sea. Toilets are to be emptied on land, not into the sea or channel. 379 7KLVWH[WLVIRXQGRQDVLJQERDUGDW.:6¶VKHDGTXDUWHUVLQ.LVLWH0SXQJXWL0135-12-01. 91 Appendix 6 Marine Park and Reserve Regulations380 These regulations include existing gazetted regulations based on the Wildlife (Conservation and Management) Act as well as draft, but formally agreed and enforced, regulations (by- laws). -­‐ Draft regulations were made after several seminars on costal Management held in various MPAs (Mombasa, Malindi, Watamu and Kisite) -­‐ Initial reserve regulations were agreed upon at a meeting held in the presence of the then Minister for Tourism (Hon. Shako), Coast Provincial Commissioner, Fishing communities from Mkwiro, Wasini, Shimoni and Kibuyuni at the Fisheries Department compound in 1977/8. Reserve Regulations Prohibit the following within the reserve: -­‐ Spear-fishing or possession of spear-fishing equipment -­‐ Handling, removal or standing on coral formations -­‐ Removal of corals, shells, clams, starfish, etc. -­‐ Usage of poison for fishing purposes -­‐ Usage of beach seine-net fishing -­‐ Use of dynamites as a fishing method Park Regulations Prohibit the following within the park: -­‐ Fishing, except under a Government of Kenya research permit -­‐ Collection, handing, removal or destruction of any natural marine organisms ± whether living or dead (sea grass, fish, coral, shells, sponges, turtles, starfish, clams etc.) -­‐ Littering, discharge of trash or other pollutants -­‐ Damage by human-driven vessel to natural formations -­‐ Handling, standing or kicking on coral formations -­‐ Nude sun-bathing on the beach and nude swimming in the sea -­‐ Tampering with or damaging markers, mooring buoys & other installations -­‐ Dredging, filling, exaction and building activities -­‐ Transit (way-through) for vessels -­‐ Vessels speeding at more than 10 knots 380 These regulations are found aW.:6¶VKHDGTXDUWHUVLQ.LVLWH0SXQJXWL0135-12-01. 92 Appendix 7 Code of Conduct for Glass Boats Excursions and Associated Members381 Mombasa Marine Park and Reserve All Glass Boat Associated Members Will Practice SAFETY FIRST -­‐ They will display (and respect) the carrying capacity of each boat clearly for all clients to see -­‐ They will always remain with the clients for the duration of the excursion -­‐ They will moor (park) the boats in a safe manner at designated areas -­‐ They will carry safety equipment to include: first aid kit, fire extinguisher, life vests/rings All Glass Boat Associated Members Will RESPECT MARINE LIFE -­‐ They will only look at the marine and not touch or remove anything from the reef (living or dead) -­‐ They will not harass any wildlife -­‐ They will not litter and will make an effort to collect any rubbish All Glass Boat Associated Members Will Conduct Themselves in a PROFESSIONAL MANNER -­‐ They will appear in a presentable manner and uniform -­‐ They will exercise social discipline and not engage in public debate -­‐ They will conduct business in a honest, realistic and clear manner -­‐ They will not interrupt/intrude another member conducting sales (one man, one visitor) -­‐ They will not harass (potential) clients -­‐ They will be punctual -­‐ They will be affiliated to a glass boat association (example MBOA) and attend the meetings All glass boat associated members agree NOT TO TRANSFER OR LEND OUT any of the educational materials received upon completion of the workshop 381 I got a copy of this code of conduct from Officer E(M), Senior Warden, KWS, Mombasa MNPR, 2011-11-07. 93 Registrerades på kursen första gången: HT-11 Omregistrerats: VT-11 Dispens: 10 veckor för minor field study