Jon Lindsay - FAO Development Law Service.
On ‘Is ‘participation’ a poor excuse for democracy? A lawyer’s Perspective’.
Timothé Fometé - University of Dschang, Cameroon & member of National Team for Cameroon’s Forest & Environment Sector Programme.
On ‘Forests and democratic development in Cameroon’.
David Brown - ODI
David Brown, ODI introduced the meeting by arguing that the forest sector has something to teach us about the meaning of ‘good governance’ and how to achieve it. He referred to the previous meeting in this series at which Hilary Benn, Minister (DfID), provided an overview of forests and governance, and the role of bilateral donors.
(1) ‘Is ‘participation’ a poor excuse for democracy? A lawyer’s perspective’.
Jon Lindsay opened his talk, saying that he would focus on issues concerning forest governance, participation and democracy, as expressed in legal frameworks. He saw the law as a useful prism for identifying patterns, weaknesses and strengths in policy and strategic thinking. He cautioned about over-emphasising the importance of law – whether or not participatory forest management works in a given context often has little to do with law. Nevertheless, he stressed that getting the law right is, in the longer run, crucial for sustainable good governance.
Jon Lindsay argued that forestry and land laws have traditionally given local people little say in the management of their natural resources but that, over the last ten years, forest law reforms in a range of countries have opened up greater opportunities for local participation. Further opportunities are presenting themselves with land tenure reform and recognition of indigenous rights. However, these reforms present a messy spectrum, ranging from participation as part of narrow, time-bound, sectoral processes, to wider local control of resources nested within a vision of local democracy. This variety in participatory strategies stems from different motivations for reform, ranging from a focus on improving resource management and local livelihoods to more profound demands for local freedom and self-determination.
Mr Lindsay went on to analyse these trends in terms of the way emerging legal frameworks treat: (i) the nature and scope of rights; (ii) security of rights; and (iii) defining the rights holders.
Mr Lindsay argued that rights are often expressed as ‘sharing benefits from participation in an agenda set by outsiders’, rather than as genuine local decision-making over resource use. He stressed that ‘management planning requirements and processes’ often limit scope for local input into decision-making (an arena that government may jealously guard), and that government often dictates ‘what areas are or are not suitable for participatory management’. Finally, Mr Lindsay argued that sectoral agendas may pre-determine what is and is not on the table for negotiation and may force local land use into predefined legal and bureaucratic categories that may not reflect environmental, social and economic conditions and priorities.
Furthermore, newly acquired rights may be fragile. Mr Lindsay highlighted a number of typical weaknesses: rights may be vaguely expressed; and governments may unilaterally cancel co-management agreements, or may change the rules or backtrack mid-stream. Legal vulnerability is often equated with lack of local resource ownership. However, Mr Lindsay cautioned that ownership does not always bring security of rights and it may not always lead to real management control. And, in any case, full ownership is often not an option presented by government. Nevertheless, recognition of a strong legal and registerable right over common property can be an important step in making rights more secure and meaningful.
Mr Lindsay also pointed to growing criticism of the use of the term ‘community’ in development circles. It oversimplifies local realities, and obscures change, internal inequalities, and the fact that people may belong to several communities at the same time. Mr Lindsay said that group definitions are legally important in order to vest or recognise rights and responsibilities in a group or entity. However he warned that, if done badly, legal definitions have the capacity to exacerbate misconceptions. Mr Lindsay quoted Ed Barrow et. al., that ‘any attempt to provide an overall definition of community [is] futile, except at a level so generalized as to be analytically sterile’.
A number of countries (Mr. Lindsay offered the Philippines and South Africa as examples) have struggled to define the word ‘community’ in their legislation. But Mr Lindsay then argued that what matters is, not the actual definition, rather how different laws identify who belongs to a group, and the range of institutional choices available to that group. Mr Lindsay illustrated different models in recent legal and policy frameworks, including:
- the user group model (self-identifying groups of households with a common interest in a resource, and which may not converge with local community identities, institutions or administrative arrangements);
- the adjacent community model (similar to a user group but defined in terms of geographical limitations);
- the indigenous or community land-holding model (where local resource management may stem from a struggle for local self-determination); and,
- the wider agenda of decentralisation (which may not be accompanied by downward accountability to the people themselves).
Mr Lindsay then highlighted a series of problems that cut across this typology, in summary:
- The ‘Participation as a New Vehicle for Exclusion’ phenomenon. Narrow definitions of who belongs can unfairly exclude secondary or transient users of a resource such as migrants..
- The ‘Alien Legal Forms’ syndrome. Complex, formal legal requirements might enable more sophisticated people to take control through manipulation of legal forms that are unfamiliar to most local peoples.
- The ‘Over-Standardization’ trap. Law drafters and governments may want communities to look the same in terms of make up, structure, size and jurisdictional area, at the expense of diversity and functioning local institutions.
- The ‘Whose Vision of Community Do We Use’ conundrum. While an approach that seeks to give expression to local visions of community is desirable, if designed poorly it can unwittingly give prominence to one of several competing visions, often at the expense of vulnerable sectors of the community.
- The ‘Local Democracy will Swallow up out Forest Committee’ anxiety. Mr Lindsay summarised the debate occurring in some countries about the proper relationship between local democratic institutions and specialised committees established for resource management. Some have argued that nesting such committees within the framework of local democracy would endanger them (and particularly the more vulnerable participants) by exposing them to faction-ridden, corrupt, local politics. But others argue that not turning them over conflicts with ideals of strengthening local democracy.
Mr Lindsay closed his talk by returning to the opening question: ‘Is participation a poor excuse for democracy?’. He said that the question presumes an ideal standard for democracy. However, he cautioned that the picture is not always so clear: in some contexts, what passes for local ‘democracy’ may serve to exclude more vulnerable elements of society, while outside interventions can, on occasion, help to give them voice. He questioned whether, in thinking about participatory forest management, there has been excessive fixation on the local, either by over-extolling the virtues of local dynamics and indigenous institutions, or by attempting to remake those institutions in a image which we, as outsiders, are comfortable with.
(2) ‘Forests and democratic development in Cameroon’.
Timothé Fometé introduced his talk as concrete case study material on forests and democratic development, looking at the forest reform process in Cameroon, the opportunities this has presented for community involvement in forest management, as well as the role of forestry in fiscal decentralisation.
Mr Fometé began by presenting some key statistics on Cameroon, showing timber as the second biggest export earner after oil, and anticipated to soon overtake the latter given declining oil reserves and the intensity of logging. He also highlighted the introduction of political pluralism in the early 1990s. Democratisation saw the introduction of a New Forest Policy (1993) and Law (1994), both strongly influenced by the global context, with greater focus on the links between environment and development. These reforms decentralised forest management to three separate categories: local councils, private forest owners and local communities.
Mr Fometé explained that the New Policy and Law also enabled decentralisation of the forest taxation system, with a proportion of felling taxes passing directly to municipalities and local communities, enabling greater local socio-economic investment. In addition, the forest reform process introduced greater transparency into the public auction of logging titles, and the appointment of independent observers of both the Title Allocation Commission and of Forest Control.
Under these reforms, Mr Fometé explained that local communities each had the right to manage up to 5000ha of forest on a 25 year rotation and in line with a simple management plan. Although the 1994 Law permitting community forestry was only implemented in 1998, with the publication of a manual of community forestry procedures, more than 150 applications have been received, 50 management plans elaborated and 25 management conventions signed. The average Community Forest yields 5-10m3 per hectare (a total of 17,500 to 35,000m3 of round wood), but a management plan may cost £2 – 3,000, meaning very high initial investment costs for communities.
However Mr Fometé pointed to the potentially very high returns on this initial investment: £7-14,000 per annum if a Community Forest is leased to a logging company (Scenario 1) or £15-20,000 per annum through chainsaw lumber production by the community itself (Scenario 2). But Mr Fometé explained that, although Scenario 2 clearly yields greater local benefits including greater local employment, communities face severe technical and marketing constraints.
Mr Fometé went on to discuss forest-sector support for fiscal decentralisation. He explained that municipalities in Cameroon tend to be both huge and poor, and have gained little from local economic activities. However, under the 1994 Forest Law, municipalities could now benefit directly from logging. National Government would receive 50% of forest taxes, while municipalities would receive 40% and local communities 10%. Implementation of the 1994 Law in 1998 was therefore largely the result of pressure from below – from both communities and the municipalities.
Mr Fometé highlighted the example of Lomié, a municipality in Province de l’Est (with 12,500 inhabitants) where, as a result of fiscal reforms, the municipal share of logging taxes soared from £20,000 in 1998 to £180,000 in 2001. Furthermore, the transparency introduced with forest law reform, means that municipal timber revenues are published for public scrutiny, and announced over radio and TV.
Mr Fometé then turned to the future, where he identified a range of risks and challenges. He highlighted the possibility of elite capture, individualism on the part of community members, as well as rent seeking behaviour by civil servants. He stressed the limited capacity of communities to negotiate with industry, their limited integration into local and international markets, as well as the risk of internal social conflicts – largely due to poor organisation.
But Mr Fometé also identified three opportunities to address these challenges, principally the Forest and Environment Sector Programme (FESP), the Poverty Reduction Strategy and the National Governance Programme. The FESP aims to reform and deconcentrate the Ministry of Forests, whilst also building capacity amongst all stakeholders, including government, the private sector and civil society, to work at the field level. The Cameroon PRSP is one of the few to incorporate the forest sector, recognising that income from Community Forests and decentralised taxation is more secure than dependence on HIPC funding and may have greater implications for poverty eradication. This focus on own-revenue, explained Mr Fometé, helps to build a nationally-driven PRSP process. Finally, Mr Fometé touched on the Governance Programme and its drive to eliminate corruption within Central Ministries. The introduction of transparent title allocation for logging and independent monitors has been crucial to the process.
In conclusion, said Mr Fometé, democratisation has sparked off an irreversible trend within the forest sector in Cameroon, where local debate has reached a level that central government cannot now stop. While Mr Fometé argued that the forest sector in Cameroon has been a valuable entry-point for governance reform, he also acknowledged that donors had been critical in providing initial impetus. Greater civil society input is badly need to reinforce and advance the process.Discussion
In response to a question as to what had motivated the Cameroon Government to take forest-sector reform seriously, Tim Fometé said that the New Forest Law had been developed within a global context of growing democratisation. While donors had been the initial catalyst, a variety of actors had since driven the process from within. The introduction of multi-party democracy in Cameroon resulted in a national awakening, in which local identities began to be expressed and in which forest zone people began to develop different expectations of the resources around them. Community Forestry provided one mechanism for local groups to get a share of the cake.
In response to a question as to how taxes paid by logging companies are allocated to local communities, Mr Fometé explained that these are initially paid to the Ministry of Finance. Cheques are then issued to local Mayors acting on behalf of local communities. The funds are located in separate bank accounts to be managed by appropriate local committees, in which communities then decide on priorities for socio-economic investment.
In response to a question as to what we mean by democracy and whose interests it serves, Jon Lindsay remarked that, however much we may cherish local democracy, in some cases it may marginalise certain vulnerable people (for example lower caste women). He said the central challenge was how to help these people, while holding true to the principle of democracy. Some have criticised sector-driven and designed ‘participatory’ forestry as not reflecting local choices, not really empowering local people to engage in real decision-making, and standing outside the context of local democracy. While this is frequently true, Mr. Lindsay argued that it does not follow that all outside interventions (for example in the form of some basic constitutional standards and safeguards reflecting the national democracy’s commitment to human rights) are inherently bad.
One member of the audience wondered what criteria might be used to judge whether participatory forestry strengthened rights and accountability. He also wondered how generalisable the successes in forestry were, sighting 6 to 8 conditions identified by Eleanor Orstrom for local co-operation to work. Another member of the audience suggested that participation in decision-making was not a sufficient condition for democracy, sighting Habermas’ legitimation theory.
Capacity-building was also highlighted as an essential prerequisite in order to help people make the most of forests, through training etc..
Jon Lindsay agreed with the need for capacity-building for participatory forest management, especially given the complicated rules and structures that are often put in place. Markers were also necessary to judge whether some local people still wanted to participate in the long-term given changes in livelihoods.
Tim Fometé stressed the need for continued capacity-building of civil society within forestry, which is often weaker than in areas such as health and human rights. He agreed with the need for benchmarks for progress, given ongoing problems with local resource management. However, he stressed the important contribution the forest sector had made in creating room for local debate, in strengthening local democracy and in carrying local voices to the national level (from the micro to the macro).
This event investigated what the forest sector has to teach us about the meaning of ‘good governance’ and how to achieve it.