Streamlining Access Procedures Gerd Winter Introduction Access procedures in Kenya Streamlining procedures

Introduction Options for legal framework of ABS Civil law => possible but assuming individual right holder on resource side Administrative law => enabling state agencies to protect public interest Problems of design Finding a balance of interests Reducing transaction costs

Approval System in Kenya Applicant Nat. Council for Science & Technol. Kenya Forest Service Kenya Wildlife Service Ministry of Science and Technology Local Community Local Community Private owner Private owner Nat. Environm. Managem. Auth.

Transaction costs Manpower and effort: applicant must address several authorities, either parallelly or subsequently Time and fees: –National Council for Science and Technology: 2 months, US$ –Kenyan Forest Service: 3 months, fees unknown –Local communities: unknown –National Environmental Management Authority: 2 months, 260 – 650 US$ Legal insecurity –Lack of substantive criteria –Discretion, no right to approval if criteria fulfilled

Streamlining authorisation procedures Looking for alternative models Clarification of substantive criteria of approvals Procedural integration Full integration

Clarification of substantive criteria of approvals Use precise language Remove overlaps Constitutional background –Legal certainty vs arbitrariness –Approval a right, not a grant

Clarification of substantive criteria of approvals What is the aim of approval by National Council for Science and Technology? –Avoidance of environmental damage? –Protection of state secrets? –Ensuring exclusive rights of state in natural resources? –Ensuring knowledge and technology transfer? –Generation of state income What is the aim of approval by Forest Service? –Avoidance of environmental damage? –Ensuring exclusive rights of state in natural resources? –Protection of indigenous communities? –Generation of state income

Clarification of substantive criteria of approvals What is the aim of approval by Kenyan Wildlife Service –Avoidance of environmental damage in protected areas? –Protection of indigenous communities? –Obtaining knowledge about the protected zone? What is the aim of PIC by local communities? –Avoidance of environmental damage? –Ensuring exclusive rights of communities in natural resource? –Provision of employment in bioprospection? What is the aim of PIC by private owners? –Ensuring exclusive rights

Sharing of research Sharing of economic benefits employmentenvironment Science Council X Forest Service XX Local communi- ties X (local)X NEMAXX (state)X

Clarification of substantive criteria of approvals Evaluation: What reasons are justifiable? How can they be formulated? Can some be integrated? –By replacing one approval by another –By installing a lead agency that coordinates approvals by different agencies –By providing integrated approval (one door, one key) inviting other agencies to participate (by comment or consent)

Procedural integration Different approvals must be obtained However: Lead agency (NEMA) entrusted with active coordination of different agencies

Procedural integration Applicant Nat. Council for Science & Technol. Kenya Forest Service Kenya Wildlife Service Ministry of Science and Technology Local Community Local Community Private owner Private owner Nat. Environm. Managem. Auth.

Full (procedural and substantive) integration Based on concept of unitary administration: lead agency provides authorisation “concentration principle”: authorisation covers –all concerns, public or private –only public concerns lead agency asks other agencies or entities for comment or even consent

Fully integrated approval Applicant Nat. Council for Science & Technol. Kenya Forest Service Kenya Wildlife Service Ministry of Science and Technology Local Community Local Community Private owner Private owner Nat. Environm. Managem. Auth.