An open Letter to Members of Parliament on Constitution (Amendment) Bill No. 13/2017

Saturday, July 28, 2018

The Members

Parliament of Uganda

Plot 16-18 Parliament Avenue

P.O. Box 7178

Kampala-Uganda

Dear Hon. Members of Parliament,

We write to express our concerns regarding the implications of Constitution (Amendment) Bill No. 13/2017 which was tabled in Parliament on 13th July 2017. The Bill seeks to amend Article 26(2) of the Constitution by allowing government to possess land before prompt payment of fair and adequate compensation in case the land owner disputes the amount awarded.

The Right to Property

We note that the Constitution, Article 26, expressly provides for the right to property and exceptions to it. The provision states:

  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 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.

Hon MPs, from the onset, we recognize government’s constitutional powers of compulsory acquisition as critical for development. However, we contend that compulsory land acquisition, just like all government power, should be exercised humanely and in compliance with the will of the people and the Constitution which is the supreme law of the land. Land acquisition in Uganda is bedeviled by many other issues including corruption. The ongoing Commission of Inquiry on Land Matters has exposed scandals in some projects requiring large scale land acquisition.

About the Bill

According to government, the purpose of the Bill is to resolve the current problem of delayed implementation of infrastructure and investment projects due to disputes related to compulsory land acquisition. The Bill recognizes that the problem of delayed government projects has caused significant financial loss to government, amounting to millions of dollars in penalties paid to contractors for redundant machinery at project sites, as the courts attempt to resolve disputes. Specifically, the bill purports to:

  • Enable Government, or a local government to deposit with court, compensation awarded by the Government for any property declared for compulsory acquisition;
  • Empower the Government or local government to take possession of the declared property upon depositing the compensation awarded for the property with court, pending determination by the court of the disputed compensation awarded to the property owner or person having an interest in or right over the property;
  • Empower the property owner or person having an interest in or right over the property to access the deposited compensation awarded at any time during the dispute resolution process; and
  • Empower Parliament to prescribe, by law, the time within which disputes arising out of compensation shall be resolved.

By inserting immediately after clause (2) of the Current Article 26, the following;

"(3) Where the owner of property or any person having any interest in or right over property objects to the compensation awarded under a law made under clause (2)(b), the Government or local government shall deposit with court for the property owner or any person having any interest in or right over the property, the compensation awarded for the property, and the Government or local government shall take possession of the property pending determination by the court of any dispute relating to the compensation.

(4) The owner of property or person having any interest in or right over the property shall have a right to access the compensation deposited with the court referred to in clause (3) at any time during the determination of the dispute.

(5) Parliament shall, by law, prescribe the time within which any dispute referred to in clause (3) shall be determined."

However, what the Bill really does is threaten the lives and livelihoods of the poorest and most vulnerable. It is:

An attack on the Constitution

Human rights are not a gift from government. The Constitution, under Article 21, recognizes that human rights are inherent- people are entitled to them naturally because they are human. People’s rights to enjoy their land and be compensated fairly, to earn a decent livelihood and utilize an impartial court of law without being manipulated into accepting unfair compensation are not negotiable. As members of parliament, people trusted you with their vote so that you could go and protect these rights. We expect you to exercise power in accordance with the will of the people. You must not sacrifice your people at the altar of development which, if done without safeguarding human rights, will leave them worse off. We expect you to uphold constitutionalism and the rule of law. Passing amendments that violate the Constitution is a waste of tax payer’s money as court is likely to strike down these amendments.

An abuse of power and property rights

Article 26 was formulated with the spirit of the Constitution in mind. The strong safeguards are a recognition of the fact that the state and big state-backed investors are likely to have more power than individuals or communities who own land. The constitution not only protects the responsibility of government to carry out its job of promoting investment, it also protects people from unfair exercise of government power and guarantees their right to continue living on the land and earn a living from it until they are compensated fairly. The Constitution recognizes that individuals and communities are likely to have less bargaining power than government and ensures they have the right to access a court of law in case there is a dispute over compensation.

Yet, the Bill in its current form fails to recognize the unfair balance of power between ordinary people and government or big investors. In a country where 80 percent of the population still relies on agriculture, it seeks to undermine the power of people to demand a fair price for their property so that they can earn a decent living even as the country pursues development. The constitution recognizes that development must be fair and inclusive. Forcing people out of their land and depositing their money in court is also a violation of the right to life. Whereas the Bill proposes that this money would be accessible to the land owners “at any time during the determination of the dispute”, we are concerned that with the high poverty and inequality levels in Uganda, poor landowners could be forced to settle for the contested compensation to meet their immediate needs. The Constitutional court in other cases has held that denying somebody their land and home and driving them out of the community unfairly is a violation of the person’s right to belong to the community, earn a decent living and be able to live a life of dignity.

Compromised judicial independence

The constitution is clear that the judiciary should be independent. Driving someone into a desperate landless situation then forcing them to negotiate with the law and not the government who is taking their land is a way of arm twisting both courts and people whose property has been taken. The sense of desperation created is likely to interfere with a fair and speedy hearing and may affect the final decision of court. The Constitution places the responsibility on government to equip courts with enough money and personnel to ensure cases are handled fast. The constitution, Land Act and National Land Policy further provide for establishment of land tribunals to handle land cases fast, but government has failed to reinstate them since their suspension in 2007..

Depositing money in court does not amount to compensation. The prior compensation envisaged under the Constitution is to the property owner or someone with interest in the property. Courts, in line with their legal mandate, can only receive compensation money after hearing a case and deciding that the compensation is fair and adequate. The Bill makes court an agent of the parties rather than a fair vehicle of justice. It gives government ownership of all land in perpetuity as government would be able possess any land even without compensating affected people. The only land not belonging to government would be that where no money has been deposited in the court. This leaves land owners vulnerable.

A justification for ongoing abuse of property rights

To amend Article 26 is to create a justification for government failure to provide enough resources for courts to quickly and fairly handle land matters and create functional land tribunals. It is also a condonation of government’s failure to respect the constitution and compensate people a fair amount for already ongoing projects. For example, the process of land acquisition for the oil refinery project in Buliisa has displaced hundreds of people, many of whom have never been compensated or resettled. A case against government for failing to compensate the people who the refinery displaced has been pending since 2014. Government stopped these people from using their land in 2012, yet to date some of these people have not been paid or given alternative pieces of land. Government expects these people to accept rates that the district land board set in 2012, ignoring the fact that land and the cost of living increases every day. There are reports that some of these people have been intimidated into signing documents declaring that they have been compensated even if they are not while others are reportedly being told to take whatever amount is on offer or leave with nothing at all.

They have been abandoned in villages without basic amenities such as water, schools or markets and in exclusion from community life that they were used to. Similar delayed compensation, suffering and exclusion have happened in other government projects such as construction of the standard gauge railway, extension of high voltage powerlines and construction of the Kampala-Entebbe express highway. In 2013, the constitutional court declared sections of the Land Acquisition Act that allow government to possess land before compensating those with interest in the land to be in violation of the constitution. The proposed amendment is against this court decision and seeks to legitimize injustice.

Lost Legitimacy

Hon MPs, the inevitable consequence of abusing power and exercising it in disregard of the constitution and the people’s will is discontent from the people who entrusted you with power. To take away the lives and livelihoods of your people is to betray them. If you amend article 26 as is proposed, you will be compromising the livelihoods of those who elected you and this will equally erode their faith in you. This loss of legitimacy might have adverse political implications especially in Uganda where the attrition rate in Parliament is over 60%.

What MPs should do instead

Rather than amending article 26 (2), MPs should:

  • Reject this Bill and, complying with Article 26 (2)(b), make laws which provide for prior and prompt payment of adequate compensation. The first step would be to revise the Land Acquisition Act to conform with Article 26 and the Constitutional court decision that declared provisions that sought to take away the right to prior compensation unconstitutional. Fast track the Land Acquisition Bill and pass it in a form that conforms to constitutional provisions on property rights.
  • Demand that government operationalizes land tribunals and concerned ministries allocate enough human and financial resources to courts so that they can speedily handle cases, including land disputes. This will ensure that projects begin on time even where there is disagreement over compensation amounts.
  • Demand that government addresses corruption and speculation that are the real causes of delay in government projects. Addressing corruption would mean less money is lost to unscrupulous people and more is left for projects, including compensation of displaced people. Nipping speculation by insider government people would ensure property prices do not go too high and people can afford a decent livelihood even after they are displaced.