Proposed land acquisition and rehabilitation policy great idea

Government through the Ministry of Lands and Urban Development, is coming up with a policy to govern compulsory acquisition of land. The idea is that the policy should be all encompassing to ensure that project affected persons are not adversely affected by the new law. Various stakeholders have been called upon by the ministry to give input to this policy.

If well thought through and laid out in light of Uganda’s current human habitat challenges, this policy can become a positive drive for sustainable human settlement and a cog in the wheel of economic progress in the country. As an initial step, the policy should have in place a mechanism to properly identify project affected persons. This mechanism should be capable of weeding out speculators and fraudsters, who have been a costly thorn in the side of the compensating entity.

Accurate due diligence should be conducted on the ground to ascertain not only ownership, but also possession occupation and user. Title and such other ownership documents should be scrutinised in light of all circumstances and not taken at face value. For instance, changes in property ownership a few months to a year before project commencement must be investigated. Ownership in areas that are prohibited by other laws such as wetlands and forests also need to be investigated.

This will greatly curb the cancer of double compensation, litigation and the public animosity, which tend to accompany the acquisition process, all resulting into costly delays.

Secondly, there is need for a law that clearly provides for resettlement and rehabilitation of adversely affected persons and all those that have been uprooted from their environment. This need is critical because mere monetary compensation is not sufficient. In some instances, whole communities are uprooted from their environment, where they had developed a symbiosis with each other and a biodiversity, which enabled them have a modicum of sustainable livelihoods.

For instance, a rural community sustaining itself through subsistence agriculture bases on a specific food crop that is suited to the soils in that area and they have to move to a different environment that they are not adapted to. In spite of being given money, such persons are unlikely to thrive unless they are properly resettled re-skilled and rehabilitated. This cannot be achieved unless very stringent legislation is put in place.

From the constitutional point of view, Article 237(2)(b), which allows for compulsory acquisition is subject to Article 26, which assures the protection from deprivation of property. The spirit of this legislation is that a person should not be dispossessed of their land and all the attendant benefits therefrom unless and until they have been put in a similar, or better position. Therefore, any policy law or practice that flouts this provision is ultra vires the Constitution and must not be allowed to stand.

On the matter of compensation, all values must be arrived at scientifically, but with due consideration of market prices, the contextual cost of living, and the inconvenience of being uprooted from ones environment. Purely academic values arrived at by government valuers in the comfort of their offices have been known not to adequately address this matter. This failure in giving realistic values has led to the practice of the more capable individuals approaching the government valuers, which has resulted into escalation of values thus pushing up the project cost and causing completion delays.

On timely resolution of conflicts resulting from the acquisition process, special courts or tribunals should be set up to exclusively and expeditiously hear the cases in a time-bound manner. This speed has been achieved in the election petition hearings and, therefore, can be emulated in this case.
No case should exceed two months before resolution, including the appeal process. Specialised technical people such as surveyors and valuers must be retained as an appendage of these courts to provide timely professional advice.

Additionally, the question of what constitutes public purpose, interest and use is currently vague and creates a lacuna in interpretation, which may open it to abuse. These concepts need to be specifically and legislatively defined for avoidance of doubt and subsequent abuse by the powers that be. For instance, government may find it convenient to define the setting up of a medium sized manufacturing plant whose sole profit beneficiaries are foreigners, as a matter of public interest, and thus deny the owners of the land to directly bargain with these persons on a willing buyer willing seller basis.

Even though this draft policy is commendable for truly capturing the varying complexities that are associated with compulsory land acquisition, it is ultimately important that any legislation born from this policy must be people centric. Legislative oversight must also be part of the exercise of acquisition. Parliament must vet and endorse a project as one requiring compulsory acquisition and must oversee the entire compensation, resettlement and rehabilitation process. This would reduce on the abuse by both the executive and the implementing agency.

Mr Ndawula-Kato Esq is the head of legal services at Buganda Land Board