There’s no constitutional obligation to give free land to investors

One of the disappointing features of the national dialogue on compulsory land acquisition which was held last week at Skyz Hotel, Naguru, was the absence of representatives of cultural institutions.
Land acquisitions affect most adversely the voiceless majority of our people who still understand land matters through their cultural mediums.
Organised under the auspices of Landnet Uganda with support from the Germany Embassy, the dialogue was intended to help Ugandans make informed decisions on the proposed draft Bill on land acquisition by government.
Underling the new proposals is the need to bring the law on compulsory acquisition in conformity with Article 26 of the Constitution following the decision of the Supreme Court, which nullified some provisions of the present law.
The Bill seeks to achieve conformity with the Constitution by providing that:
Compensation should be effected within a timeframe of two years of the declaration of government’s intentions;
Payment of disturbance allowance. Better restoration package for the affected persons than their original state. Possession to be taken only after payment of compensation. Setting up a tribunal to hear complaints with a right of appeal to the High Court.
It is not clear how these proposals conform with Article 26, which provides that “No person shall be compulsorily deprived of property or any interest in or right over property of any description except after (payment of prompt and adequate compensation prior to taking possession.”
Article 26 is quite clear; it addresses two situations, namely the taking of property or rights over property. The Bill addresses only the first part of the article.
Ownership of property connotes the physical control of it and the bundle of rights which go with it, for example, the right to sell, the right to keep away trespasser, the right to enjoy its comfort and now the right not to lose these rights without prompt and adequate compensation, among others.
From that time, the minister makes a declaration that the government intends to compulsorily acquire a property the owners rights are derogated because he cannot then deal with his property as he chooses. Prompt and adequate compensation becomes due and payable at the time the minister makes the declaration, not at the time the government ordains. Secondly, by providing in the Bill that the government will pay 10 per cent of the value of compensation is an open door to abuse since government can then take its time and cannot satisfy the constitutional requirement of prompt payment.
The abolition of public land in the 1995 Constitution and the failure to make regulations under the 1965, the present law are responsible for the government’s discomfiture. At independence, the State, not government, succeeded to the colonial Crown land as provided for in section 2 of the Crown Lands Ordinance,1903, which provided:
“All land and any rights therein in the protectorate shall be presumed to be the property of the Crown unless they have been or are hereinafter recognized by the Governor to be the property of the individual.’’
Crown land became public land after independence. According to the records available in Buganda, the Governor recognised only more than 400 people as owners of mailo land. Through subdivisions, the number of people so recognised rose to 50,000 by 1950, rising to one million today. Only about 30 per cent of the land in Buganda is owned by individuals, which means 70 per cent is contolled by district land boards by virtue of Article 241 of the Constitution.
There is no constitutional obligation to give free land to investors. A tripartite interaction between land owners, district land boards and government will solve the government’s problem.
Mr Mulira is a lawyer.
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