MR. BUGAYA DENIS.
For a greater half of the year 2016, government, through its minister for Lands, Housing and Urban Development, has been grappling with the idea of land reforms. Key amongst the areas earmarked for reform is the law relating to compulsory acquisition of land by government for any public project.
Specifically, the government wants to amend article 26 (2) of the constitution, which, as it is, prohibits the state from taking over private property without prior payment of a fair compensation to the person affected.
The proposed amendment is by introducing a clause which allows government to take over land, use it for public projects before it compensates the project-affected persons (PAPs) by making a commitment that it will pay them later. In other words, government is introducing a concept that is alien in both the legal and human rights jurisprudence; that is compensation by promissory note (I promise I will pay you).
To understand the damage such an amendment is likely to occasion on the legal and humans rights fields, particularly the right to own property, someone needs to look at it in the historical perspective.
The 1962 Independence Constitution, which was born out of the National consensus at Leicester, particularly Article 22 (1), prohibited compulsorily taking over land if it is not in the interest of defence, public order, safety and morality. It also provided for prompt and adequate compensation as preconditions for the taking over of land. The same provisions were later enacted in the Land Acquisition Act, the 1966 and 1967 constitutions.
In 1967, when kingdoms were abolished, there was deliberate and forceful takeover of the properties belonging to kingdoms without compensation. This trend continued in 1969 with the Nakivubo pronouncements which saw the forceful nationalization of foreign companies without compensating the shareholders. It was later to be followed by the 1972 seizure of property owned by Asians and the Land Reform Decree of 1975 which saw the Idi Amin government seize and nationalize all privately-owned perpetual interest in land without compensation.
However, when the new national consensus was reached through the 1995 Constitution by the Constituent Assembly; the law on compensation, as it was in the 1962, was reenacted, but this time with an additional progressive clause. This clause provided that much as government could compulsorily acquire land, it had to pay the owners prior to taking over.
This constitution was later hailed as the most progressive in Africa and it even became the golden standard on human rights in Africa. The position that government could not take over land for construction of a road or for any project before adequately and promptly compensating the affected individual was even affirmed by the Constitutional and Supreme courts in the Uganda National Roads Authority Vs Irumba Asumani and Peter Magelah case.
The ‘Betty Amongi amendments’ – by the way, I consider her one of the finest, fair and open-minded ministers in our government – seek to not only reverse the Constitutional and Supreme court decisions, but also to create an avalanche of social dissatisfaction where the citizenry will be left at the mercy of government officials who will determine when to compensate someone.
This matter has generated a lot of public concern, prompting the minister to often come out and clarify. She has said that actually government is only seeking to bring a law that will fasten infrastructural development by getting rid of speculators who get prior knowledge of these projects and purchase property along the right of way and later ask for exorbitant compensations. She has also clarified that she is just proposing an amendment that in such a case government will just assess, then deposit money it has assessed or valued for the property in court or in a certain account and then construct as the impasse gets resolved. This explanation has two flaws that make it unconvincing.
First, why does government go for a straight amendment to the Constitution instead of amending the Land Acquisition Act? The logical answer is that they don’t want the amendment to be struck down by the Constitutional court as being anti-people. Second, the minister’s reasoning underscores the administrative weakness in government. Otherwise, how do the so-called speculators get prior knowledge of these projects? How do they end up inflating their valuation awards yet valuations are approved by the valuation department under her docket? The answer to all this is simple: the reason for the amendment is just to fasten infrastructural development without prior compensation.
We all love this massive infrastructural development, but the question is: should that be at the cost of depriving the masses and the private property owners of their hard-earned life savings?
As a solution, the government should work more on strengthening the intra-ministerial supervision rather than pushing through such a law.
The author is the legal manager and public relations officer of Buganda Land Board.
As reported by the Observer dated 9, January 2017