I agree with Luis Franceschi, for once.

Luis Franceschi has an interesting take on the place of law in politics, and politics in law, in today's online edition of the Daily Nation (Can courts prevent county assemblies from voting on impeachment? 31/01/14). In the same paper, the Chief Justice calls for better wildlife conservation/protection laws. This blogger thinks that it is the Luis Franceschi view that should prevail, namely that not everything can be legislated. This blogger would go so far as to argue that not everything the state or the elites declare to be a crime should be made a crime punishable at law.

Kenya is a biodiversity-rich ecological wonder because of its unique terrain, soil, geographical location and its enlightened public. But its diversity is threatened with destruction from poor management and outright sabotage even by the well-meaning. Kenya is also unique in having a truly diverse economy that seems to be thriving but with terribly high levels of inequity between the haves and the have-nots. The poor seem to remain poor for longer than should be the case if the economy is growing at the rate the experts say that it is.

It is for this reason that the law should take into account the realities on the ground. In the 1940s and'50s, when the colonial government took on the challenge of conserving Kenya's flora and fauna, very little was known about Kenya's diverse ecological riches, but a lot was known about the state of impoverishment because of the colonial land policies and economic policies. The villagisation of Central Kenya has had a pernicious effect on the management of the environment since the colonial era. The same mistakes that were committed then are being committed today: the demonisation of the weak and the poor for the sake of dollars from tourism.

Mr Franceschi was writing in the context of the Embu governor's impeachment, but his argument can be extended to the manner in which environmental conservation has been managed, especially since the late 1970s. For the most part, it has been a donor-driven effort, with many researchers from overseas, especially the United States and Western Europe, exploiting out flora and fauna for their benefit. Meanwhile, the residents of Kenya have not been so lucky. The few that have had opportunities to conduct research in the nation's parks and game reserves, have found their research restricted to mundane subjects that had very little commercial viability, unless of course they were attached to a larger Western research project. Kenyans who live around these protected areas have had their livelihoods disrupted for very little or no compensation. (The Endorois would have very strong views on this.)

Therefore, when the effect of the enforcement of the wildlife protection laws is the persecution of the poor, there must come a time when we ask whether or not it is worth it to protect lions and elephants when millions of Kenyans are at risk of starvation. The short-sighted decision by the Kenya Wildlife Service against renegotiating the Convention on International Trade in Endangered Species (CITES) will rank as the hallmark of the wildlife conservation lobby against the interests of the poor. If all the nations of the world were allowed to trade in their stockpiles of wildlife trophies, Kenya could set aside this amount to helping communities around parks and reserves adapt to alternative livelihoods. This is a simplistic argument, but the fact that Kenya did not have a chance to debate the matter is instructive.

For a lawyer, every problem can be solved by more laws, or so it seems from the Chief Justice's remarks. He should know better. Laws are simply not enough; they must enjoy broad legitimacy amongst key stakeholders, f not the whole nation. Wildlife laws are broadly legitimate, but not among the communities who live next to reserves and parks. When young poor men form the bulk of offenders, their families pay the price when these young men are incarcerated or fined. Until the youth of Kenya, especially the youth living near game parks and reserves, get better economic opportunities that better education and other public facilities bring, they will form the bulk of anti-wildlife offenders and Kenyan elites will keep calling for stiffer penalties or, in the words of the Chief Justice, improved wildlife laws.