property rights

When Government corrupts the principle of ownership of personal property

The gazette is in print. The Bill giving government authority to use, own, lease, buy, usurp powers etc., over individual land/ property might soon become Law.

Lands Minister, Betty Amongi, must be smiling her way to Cabinet since she revealed this proposal in 2016 under the pretext of reducing bureaucratic tendencies involved in government instigated compulsory land acquisitions.

For many who live in oblivion of what happens in the country’s political arena, this Bill per se will be irrational, especially during enforcement: which we predict to be better than paying teachers’ salaries and equipping the medical industry.

We can safely assume that many Ugandans may lose their land to government under the pretext of ‘development’ even though we acknowledge there are instances where development projects are necessary and will require huge portions of land.

Countries like Kenya have vested their land in ‘the people, collectively as a nation, as communities and as individuals’, unlike Uganda’s several land tenures which include mailo, customary, leasehold and freehold tenures. These tenures are already facing opposition from affected land owners and bonafide tenants.

Compulsory Land Acquisition: The mystery

What land owners first surrendered by default were ‘all minerals and mineral oils’ to their respective country governments. Every mineral deposit is the government’s, regardless of where it has been discovered: yes, your backyard, too!

Regrettably, many Ugandans now face deprivation of property by compulsory land acquisitions by the government and local governments!

In this scenario, it seems like individuals can own land under any tenure but cannot secure its perpetual ownership should government set its eyes on it.

Ordinarily, land owners are at liberty to use their portions at will. They can farm, build, furrow, etc. With compulsory acquisition of land by government, the proposed legislation gives government authority to evacuate anybody, (listen, anybody) from his/her/its land without first compensating him/her/it.

This is ludicrous!

The Law

Chapter 15 of Uganda’s constitution provides for land and environment and under its Article 237 on land ownership, the land in Uganda is presumed to belong to the ‘citizens of Uganda and shall vest in them in accordance with the land tenure systems provided for in the Constitution’.

If you are asking for the authority that recommends to the government or Local Government to acquire your land ‘in the public interest’ provided it honors the provision in Article 26, it is your legislators-Parliament.

Article 26 provides that:

(1) Every person has a right to own property either individually or in association with others.

(2) 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-

  1. 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.’

Let that sink in, countryman, countrywoman.

Now, consider the following:

Courts are swamped with; and government is burdened by the debt from cases where individuals and institutional land owners seek compensation for loss of land.

We have previously written about ‘subject versus king’ over land proprietorship: the former claiming cultural land is not personal property belonging to the latter but rather property held by the latter in trust of the former’s behalf.

Historical error

It is fortunate for us and unfortunate for government and land grabbers that documentary evidence exists on land ownership.

History confesses that tribes migrated from somewhere, settled in an area and forged a physical presence and ownership on the land where they settled. It also reveals that the African continent was unfairly ripped apart and shared among foreign governments whose policies matched their alien norms and continue to tear the present boundaries.

Further, history narrates the injustices meted on tribes and how some cultures received favours against others: how the favoured ones looted and received tracts of land and titles of ownership over other cultures’ land: how these injustices remain uncorrected.

From this fragile background, it is most appalling that government should seek to usurp the meager resources individuals/communities depend on by compulsorily acquiring land without first compensating the affected persons. Compensating later on may take time!

Despite its challenges, the current law on compulsory land acquisition had given land owners hope. This ‘hope’, where a land owner receives a ‘market value’ payment for his/her/its property is what had kept many from land disputes.

However,

Should government deprive rightful/legitimate land owners of their ‘hope’ for and actual compensation (since governments change policies in a wink), there may be instability in the future.

Compensation takes time to materialize. It is understandable that a democratic society in today’s global village should maximize its development. But to whom is the land given? How is this policy going to be exercised? Won’t there be malice in acquiring the land? Will it not destabilize communities with the evacuation and re-settlements that will develop?

Conclusion

Assuming a foreign investor acquires a lease of 99years from government over property the latter has compulsorily acquired, should a 53year old Baluku force his creator to halt his aging process so he could enjoy proceeds from his property (latter compensation)?

True, things like population pressure, poverty, unemployment and international polices on development have coerced governments in many developing countries to seek new ventures on how to exploit natural resources or use available land,

But

It will be shameful and against the laws of natural justice if government materializes her proposal and makes a law to acquire private owned land before it fully pays for it.

BY ATUHAIRWE AGRACE

This article appears in our digital law newsletter, The Deuteronomy Vol 7, Issue 1 of July 7th, 2017

To receive The Deuteronomy in real time, click HERE

 

 

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