Moses Sserwanga
12 February 2007
column
Following a storm of public outrage over government's controversial land giveaways, the executive seems to have changed its strategy on land acquisition and is now willing to pay a market price for land that will be allocated to investors.
The new plan follows the formation of a new land fund under the supervision of Finance Minister Ezra Suruma. According to State minister for investments, Prof. Ssemakula Kiwanuka, the government will not force anybody to sell off their land. Instead, individual landowners will be encouraged to trade with government on the open market.
Hitherto, the state had come under virulent criticism following the numerous controversial public land giveaways which interalia included Shimoni Demonstration School, Nakasero, UBC/TV, Kitante, Luzira, Butabika, Naguru-Nakawa not forgetting wetlands and forests. In all the above public land dealings, the state and its agents flouted the law.
The state did not only fail to pay a fair premium for the land before donating it to "investors" but also contravened set legal procedures. Parliament was not consulted before executive orders were made to parcel out land, which according to the constitution should be managed by the state in trust for the people of Uganda. The public fury is therefore justified because at law (constitution of Uganda), the radical title to land (actual ownership) is now vested in the citizens of Uganda at large. This effectively means that the state no longer has reversionary rights over land.
The doctrine of eminent domain (the power to take over land for public purposes by the state) derives only from articles 26 and 237 of the Constitution and is exercised in terms of the provisions of the Land Acquisition Act (Cap. 226). That power is conferred on the state and local authorities and may be exercised in the interest of defence, public safety, public order, public morality or public health.
Nowhere does the eminent domain permit the state to take over land for investment. Further still, the constitution provides that the state's power to take over land should be subject to the payment of prompt and adequate compensation before acquisition is made or possession taken. An important consequence of this is that the power of eminent domain is essentially in the nature of a compulsory sale.
According to the Land Acquisition Act, the state through its agents is under a legal duty to publicly declare any land that is required by government for public purpose. A notice to this effect has to be published in the Gazette and exhibited at convenient places on or near the land, stating that the government intends to take possession of the land and that claims to compensation for all interests in the land may be made.
The government is in total breach of these provisions of the law in respect of the above listed public land giveaways. Courts of law have been very explicit on this matter of great public importance. And this is for obvious reasons.
The state always stands in a position of superiority over any private individual or institution.
And as it has been manifested in the recent controversial donations, the state's decisions normally prevail. The other issue that always causes legal controversies similar to those in the cases highlighted above, is whether the purpose for which the state purported acquisition of particular land is for a public purpose or one of the several purposes mentioned in article 26(2) of the constitution.
This is because the public interest is directly concerned with the government action and undertaking. That's why it's prudent that parliament should be involved because of its unique position as a people representative organ.
Courts of law have stated that the phrase "public interest in cases of the state's compulsory acquisition of land" whatever it may mean, must include a purpose that is an aim or object in which general interest of the community as opposed to particular interest of individuals is directly and virtually concerned.
This is clearly intended to protect the people who own land from the excesses of the state. It is important that the new national land policy ensures that the state and local authorities use the power of eminent domain responsibly and strictly in the public interest.
A part from extending the power of eminent domain to organs of land owning communities so as to facilitate orderly development at that level; the new land policy seeks to expand the scope of the state's power of eminent domain to include acquisition of land for carefully defined investment, physical planning and development purposes.
This is where the stakeholders need to be careful. This new government proposal which is intended to allow government secure land for investment should establish mechanisms for the automatic restitution of land taken and reparations for loss in the event that the public purpose justification fails.
The authorities should also ensure that the method, exercise, and principles of compensation for land taken are the same and uniformly applied across all tenure categories. The Land Acquisition Act should also be amended to conform to the provisions of the Constitution.
The writer is a Journalist and Advocate
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