Since 2014 when the President was quoted to have mooted the idea of compulsorily acquiring land at the national conference on mineral wealth, this debate has raged on and remains unsettled to date.
Whereas the President’s proposal was related to granting investors access to mineral-rich land, a position that is backed by Article 244 of the Constitution, the compulsory land acquisition conversation has since extended to other government projects.
According to the Ministry of Land, Housing and Urban Development, this move is informed by numerous concerns from the Executive over the delay of infrastructure and extractives projects due to prolonged land acquisition processes.
Government is currently grappling with, among other issues, the rights granted by the 1995 Constitution which provides that persons affected by development projects should not vacate the land until they are promptly and adequately compensated prior to relocation.
This is a very legitimate concern that was even flagged by the World Bank in its Ease of Doing Business Report, as one of the challenges for doing business in Uganda.
However, the Land Acquisition Act of 1965 which government had previously erroneously relied on to wrongfully evict persons prior to compensation was successfully challenged in a protracted Constitution petition.
The UNRA vs Asumani Irumaba and Peter Magelah petition which started in the Constitutional Court in 2012, ended up on appeal at the Supreme Court in 2015.
The Supreme Court in this case declared unconstitutional the sections of the 1965 Land Acquisition Act and nullified the provisions which allowed government to take over private land prior to compensating the land owner, due to their inconsistency with Article 26 of the Constitution.
Article 26 of the 1995 Constitution upon which court relied to nullify the sections of the Act provides for stringent protection from deprivation of property. Article 26(2) states no person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied:
a) The taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health; and
b) The compulsory taking of possession or acquisition of property is made under a law which makes provision for:
i. Prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property; and
ii. A right of access to a court of law by any person who has an interest or right over the property”
Currently, government is developing the land acquisition, resettlement and rehabilitation policy alongside the amending of the Land Acquisition Act. The ongoing policy formulation and amendment of the Act is ideally intended to operationalise this provision of the Constitution by putting in place the procedural details on how government should acquire private land if it is needed for public use.
The decision to amend the Land Acquisition Act was preceded by attempts by government to remove from the Constitution the human rights protection granted by Article 26(2). These efforts by government included the controversial constitutional (amendment) Bill No. 13 of 2017.
Upon the attempt to amend the Constitution being rejected by Parliament, civil society and members of the public, government then resorted to amending the Land Acquisition Act.
In view of the foregoing, it is important to note that the rationale for government amending the Land Acquisition Bill is to “claw back” the land and property rights granted by Article 26(2) of the Constitution. The Constitution currently protects privately owned land from being compulsorily acquired without free, prior and informed consent and upon prompt payment of a fair and adequate compensation prior to taking of possession or acquisition of the property.
This position is reiterated in a number of international human rights instruments to which Uganda is signatory as well as the World Bank / IFC Performance Standard Five. I call upon all presidential candidates to not only pronounce themselves on this issue, but also make commitment to protecting the land rights of Ugandans.
The writer is national coordinator, Civil Society Coalition on Oil and Gas at ACODE