肯尼亚法律允许的野生动物和森林的传统习惯用途

N. Sifuna
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They are largely \nformal and universal ones that are universally obtaining across the world irrespective of the levels of civilization or cultural identity, \nand are even compatible with modernity. Apart from these, there are some wildlife \nand forestry uses which are unique to the typical African way of life as part of old traditional \ncustoms that have existed from earlier times. These are what are in this paper \nreferred to as “traditional customary uses”. These uses are largely informal, \nrudimentary and archaic. They are nevertheless critical in the endemic African \nway of life and represent the inextricable rudimentary technologically bereft \nrelationship between the African people and their natural resources. Under the \ncountry’s existing laws, some of these uses are prohibited and criminal \nsanctions prescribed to enforce their proscription, hence cannot be enjoyed or \npracticed. There are however others that the law has either expressly allowed, or not prohibited, hence may be lawfully \nenjoyed or practiced. These are what this paper has referred to as the legally \npermissible traditional customary uses; and are the ones that are its subject. \nAs for wildlife, in the year 1977, the Kenya Government by a Legal Notice in \nthe Kenya Gazette imposed a ban on all forms of hunting of wildlife. The ban is still in force. This therefore means that hunting is illegal, as legal prohibition has \nin effect prohibited all and any form of off-take or killing of wildlife. By \nimplication therefore, under Kenyan law, only non-consumptive uses of wildlife \nmay be enjoyed, and not the consumptive ones. These include viewing as well as \nsocio-cultural and spiritual uses. 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引用次数: 2

摘要

肯尼亚像大多数撒哈拉以南非洲国家一样,主要依靠农业和自然资源;其中包括土地、水、矿产和渔业,但最主要的是野生动物和林业。根据法律,矿产属于政府所有,只能由政府而不是公民来开采,而野生动物和森林是公民可以在日常生活中利用的资源,以满足他们的需求。除了消费用途外,野生动物和森林也有非消费用途和价值;例如它们作为基因库的内在生态价值,以及它们的观赏价值。这些本质上是传统的价值和用途。它们在很大程度上是正式的和普遍的,无论文明水平或文化认同如何,它们在世界范围内普遍存在,甚至与现代性兼容。除此之外,还有一些野生动物和林业用途,这是典型的非洲生活方式所特有的,是早期存在的古老传统习俗的一部分。这些在本文中被称为“传统习惯用途”。这些用法大多是非正式的、简陋的和陈旧的。然而,它们对非洲特有的生活方式至关重要,并代表了非洲人民与其自然资源之间缺乏技术的基本关系。根据该国现行法律,其中一些用途是被禁止的,并规定了刑事制裁来强制禁止这些用途,因此不能享有或实行。然而,还有一些是法律明确允许的,或者不禁止的,因此可以合法地享受或实践。这就是本文所说的法律允许的传统习惯用法;是它的主体。关于野生动物,1977年,肯尼亚政府在《肯尼亚公报》上发布了一项法律通知,禁止一切形式的野生动物狩猎。这项禁令仍然有效。因此,这意味着狩猎是非法的,因为法律禁令实际上禁止了所有和任何形式的猎取或杀害野生动物。因此,根据肯尼亚法律,只能享受非消费用途的野生动物,而不能享受消费用途的野生动物。这些包括观赏、社会文化和精神用途。因此,在肯尼亚,唯一允许使用野生动物的传统习惯是用于社会文化和精神目的的非消耗性用途;当然,根据肯尼亚《巫术法》(第67章),现行法律禁止使用巫术。这项立法禁止了巫术的实践和推广。这实际上意味着,尽管法律允许对野生动物进行社会文化和精神上的利用,但只要不用于巫术目的,就可以享受这种利用。关于森林,作者指出了肯尼亚法律允许的以下五种传统习惯用途:社会文化和精神(消费和非消费)用途,但不用于巫术;用于民间草药中,但不用于巫术;用于人类食品和牲畜饲料;用作柴火;并用作建筑和传统工艺的原料。值得注意的是,在肯尼亚,传统习俗的使用受到现行法律禁止巫术的约束。此外,在法律允许的使用类别是本文的重点的同时,作者也讨论了禁止的传统习惯用途。本文基于文献调查和作者以前的研究数据,其主要数据和研究结果已在最近发表。它还借鉴了文献研究和其他评论员对该主题的各种文献观点。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The Legally Permissible Traditional Customary Uses of Wildlife and Forests under Kenyan Law
Kenya like most of sub-Saharan Africa is reliant predominantly on agriculture and natural resources; which include land, water, minerals and fisheries, but the most dominant of which are wildlife and forestry. Unlike minerals which are by law vested in the government and can only be extracted by it and not the citizenry, wildlife and forestry are resources that the citizens may utilize in their day to day lives to meet their needs. Apart from their consumptive uses, there are also non-consumptive uses and values of wild animals and forests; such as their intrinsic ecological value as gene banks, as well as their scenic value for viewing. These are essentially conventional values and uses. They are largely formal and universal ones that are universally obtaining across the world irrespective of the levels of civilization or cultural identity, and are even compatible with modernity. Apart from these, there are some wildlife and forestry uses which are unique to the typical African way of life as part of old traditional customs that have existed from earlier times. These are what are in this paper referred to as “traditional customary uses”. These uses are largely informal, rudimentary and archaic. They are nevertheless critical in the endemic African way of life and represent the inextricable rudimentary technologically bereft relationship between the African people and their natural resources. Under the country’s existing laws, some of these uses are prohibited and criminal sanctions prescribed to enforce their proscription, hence cannot be enjoyed or practiced. There are however others that the law has either expressly allowed, or not prohibited, hence may be lawfully enjoyed or practiced. These are what this paper has referred to as the legally permissible traditional customary uses; and are the ones that are its subject. As for wildlife, in the year 1977, the Kenya Government by a Legal Notice in the Kenya Gazette imposed a ban on all forms of hunting of wildlife. The ban is still in force. This therefore means that hunting is illegal, as legal prohibition has in effect prohibited all and any form of off-take or killing of wildlife. By implication therefore, under Kenyan law, only non-consumptive uses of wildlife may be enjoyed, and not the consumptive ones. These include viewing as well as socio-cultural and spiritual uses. In Kenya therefore, the only permissible traditional customary use of wildlife is its non-consumptive use for socio-cultural and spiritual purposes; subject of course to the existing legal prohibition on witchcraft under the Witchcraft Act (Cap 67 Laws of Kenya). This piece of legislation has prohibited the practice and promotion of witchcraft. This in effect means that the socio-cultural and spiritual uses of wildlife though legally permissible, will be enjoyed, provided it is not for witchcraft purposes. With regard to forests, this author has identified the following five as their legally permissible traditional customary uses under Kenyan law: Socio-cultural and spiritual (consumptive and non-consumptive) use, other than for witchcraft; use in herbal folk medicine, other than for witchcraft; use for human food and livestock fodder; use for firewood; and use as raw material in construction and traditional craft. Notably, in Kenya, traditional customary use is subject to the existing legal prohibition on witchcraft. Further, while it is the legally permissible use category that is the focus of this paper, the author nevertheless discusses the prohibited traditional customary uses as well. This paper is based on literature survey as well as data obtained from the author’s previous research whose primary data and findings have been published in recent times. It also draws from the documented research and diverse documented views of other commentators on the subject.
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