Analysis

Even in the absence of legislation for transparency, efforts by forest authorities – often backed by donor-supported sector reform programmes – are noted (see box). These good intentions indicate that transparency is increasingly recognised as an issue and discussed openly by government.

However, greater challenges are faced in implementation. All four countries report a strong tradition of secrecy in the public administration, leading to weak record-keeping, poor dissemination especially to remote populations or in local languages, and non-existent or ineffective information management systems.

As reported from Ghana, information is power, as “staff still keep and use information as a source of authority which must be jealously guarded”. This perhaps explains why there is rarely any clear instruction or pressure from the legislators or political authorities to improve.

Even in Perú, where the law provides that every public institution has a website, the main website providing forest sector information disappeared after reforms dissolved the relevant institution and the replacement authorities have yet to replace it.

The 2009 report cards make little reference to caveats or exclusions such as 'commercial confidentialities' or ‘national security’. However this is likely to be a reflection of the fact that so much non-contentious public information still isn’t published. Future legislative and other improvements in exercising the right to information may result in a greater significance of these ‘anti-transparency’ rules.

Unsurprisingly, all four countries have a forest law, and it’s publically available. Often there are many tiers of law, decree, legislative instrument, regulation etc resulting in a complex, multi-layered set of rules. Despite that, for different reasons, no country was able to report a comprehensive set of norms.

The most significant lapse was in Perú, where new legislation, in the form of a Legislative Decree (not requiring the usual deliberations in Congress) was passed in June 2008 and revoked a year later. The previous 2000 Forest and Wildlife Law has been temporarily reinstated whilst a new law is drafted.

The ability to refer to the law and regulations in the places were it might matter most, amongst forest-dependent people, is constrained by the same weaknesses in public administrations noted above, notably a lack of accessible public information offices in the capital city and the inability for officials in the field to disseminate information they themselves are not given.

This is a particularly severe problem in the context of permit allocation. All countries report a serious lack of transparency, and often a failure to follow the rule of law, regarding decisions to allocate forest to logging companies. In Ghana and Cameroon, small-scale permits are abused by being issued multiple times, allowing large operators to log areas they are not entitled to. In Liberia seven new concessions have been issued despite failing to meet basic due diligence standards. The Perú analysis reports an “almost complete lack of mechanisms for participation, transparency and accountability in the process of granting forest rights”.

Very little information is available on permit systems for non-timber forest products and environmental services. This reflects the commodification of timber and a corresponding lack of policy attention given to small-scale enterprise development and sustainable local economies. Whilst such systems should not present an overly heavy burden on small-scale operators, the absence of clear rights, rules and procedures leaves local officials and bigger companies able to wield significant discretionary power. It also reflects complex and contradictory laws and power relations over land and forest tenure, and, looking to the future, begs the question, “so who owns the carbon?”.

Forest forums, as a platform for regular exchange between stakeholders and the authorities, have existed in Ghana for some years, and recently discussions have started in Liberia to replicate this. Forest forums are important for two reasons. First, they operates at many levels, so both very local and national issues can be aired at the appropriate forum. Second, unlike many other consultative processes set up for a particular purpose (to discuss new legislation, or to input into a donor-driven programme) forest forums are embedded into the normal interactions between citizen and state.

In Perú and Cameroon, one-off participatory processes have nonetheless been effective. In Cameroon (and indeed in Ghana) civil society representatives were involved in the negotiation of the Voluntary Partnership Agreement (VPA) between the Government and the EU, and the space thus created is helping to ensure the participation subsequent legal reform.

The most significant change is in Perú, following a crisis in mid-2009 where a demonstration stemming from a lack consultation resulted in a of number of people being killed. As a result a previous forest law, regarded as illegitimate as its drafting lacked a participatory approach, was revoked and discussions on a new law are participatory and transparent.

Forests in the context of land tenure and land use

Forest tenure is one of the most complex areas assessed, and it generated most discussion amongst partners during the development of the report card. Ghana reports that there are estimated to be 166 laws affecting land tenure. During data collection it was easy to identify many cases of conflict over tenure, and few clear mechanisms for access to justice to address these.

In all countries, de facto control over forests is exercised by the state, which administers user rights for different purposes. Fundamental disputes exist over the legitimacy of this control in each country, with Perú and Liberia offering two perspectives: In Perú, the consensus that all forest is the inalienable patrimony of the nation is challenged by some indigenous peoples advocates seeking ‘territorial rights’. In Liberia, some hinterland communities have documented, private, communal ownership of forest land, but this has been disrespected by the forest authority.

Whilst traditional practice and customary law are often contradicted by more recent laws asserting the dominance of the state, little information is shared with communities on the differences and therefore the extent of different actors’ rights. Confusion reigns, and provides many opportunities for buying off local elites or taking advantage of uninformed rural communities.

Fiscal regime, revenue and redistribution

In all countries a legal basis for sharing up to 50% of timber revenues locally exists. In Ghana, Cameroon and Liberia this redistribution explicitly includes communities (between 10% and 30%), whereas in Perú the (50%) share is to regional and local authorities, not communities per se.

Ghana and Cameroon both suffer from a lack of transparency around these payments, their timing and purpose. (There is no information on Perú or Liberia, partly due to logging operations not having started in the latter country). Problems identified include:

• Information about payments only reaches municipalities and not further into rural areas, so there is little opportunity to systematically monitor expenditure at the community level.
• What evidence there is suggests the money is not always used for genuine development activities at the grassroots level.
• No parallel information on the volumes or values of timber extracted is made available, so it is not possible to reconcile ‘sales’ with ‘income’.
• No clarity on whether the system is applicable to other non-timber products or services (for example, carbon).

Emerging Issues

Carbon: The emergence of carbon as a new, lucrative and ‘priceable’ forest product has exposed a lack of legal framework for the formal identification, protection and valuation of environmental services. Already in Liberia, cases of attempted carbon fraud have come to light.

Mining: Particular weaknesses in access to information and decision-making were identified all countries in relation to the way mining and oil (and possibly in future, agro-industrial) contracts and other extra-sectoral initiatives are able to run roughshod, and in relative secrecy, over forest protection measures. This reflects the relative economic and political power of mining and forest authorities.

Trade-offs

Carbon and mining represent two examples of were cross-institutional coordination and strategic planning is essential, and largely absent. Often, different institutions other than the forest authority are responsible for different services provided by the forest but there is no coordination of efforts. There are anecdotal reports that the appointment of environmental protection agencies as opposed to forest authorities as the lead government department for REDD negotiations is an attempt to share some of the anticipated largesse with an otherwise poorly funded agency.

Environmental Impact Assessments are a requirement for large-scale development (including in some countries, logging concessions) but often – perhaps through political expediency – these are too narrowly framed, studying the impacts of a particular project but not seeking to identify extraction or conservation are better options. So there is no strategic process to evaluate trade-offs and decide priorities between different development options in any country.