In order to understand why human rights and constitutional lawyers have joined the masses to oppose the Ministry of Lands proposal to amendment of Article 26 of the Constitution, one ought to go back to the foundation of constitutional law and statutory legislations. A constitution is supposed to be a state’s fundamental law that contains the essential elements of government organization, the basic principles of governmental powers and the enumeration of citizen rights. A constitution is meant to have permanence and brevity. Statutory law (Acts of Parliament), on the other hand, provides the details of government operation and is subject to frequent change by the Legislature. Typically, constitutional amendments are proposed to authorize new programs, ensure that reforms are not easily undone by future legislation or seek protections for special interests.

The dichotomy between the Constitution and Acts of parliament is meant to safeguard the constitutional tenets of permanence and brevity. Unfortunately, when more detail is placed in the Constitution, as the case is with the “Amongi Amendment”, this waters down the relevancy of Acts of parliament and, consequently, constitutional amendments inevitably become more frequent to suit the ever changing conditions or social economic environment. It is, therefore, my humble submission that should government want to effect the proposed change, the law to amend or even repeal, is the Land Acquisition Act, and not the 1995 Constitution. However, such an amendment of the Act must be consistent with the Constitution.

Notwithstanding the legal discourse above, the intension of the framers of the constitution in drafting Article 26 can be inferred from the Article’s heading which reads “Protection from deprivation of property”.  In a nutshell, the article provides for prior payment of compensation for the deprivation of property by the government. This provision was informed by the historical land question that has haunted Uganda for over a century, whose mischief the Constituent Assembly sought to cure once and for all. In fact 20 years after the passing of the Constitution, this position was reaffirmed by the highest court in the land, in the vase of UNRA vs. Asumani Irumaba and another. The Supreme Court in this case declared unconstitutional the sections of the 1965 Land Acquisition Act. The nullified provisions allowed government to take over private land prior to compensating the land owner. One can rightfully say the proposed amendment literally seeks to defeat this 2015 decision of the Supreme Court.

The United Nations Guidelines on Free, Prior and Informed Consent to land acquisition provide that an individual and/or community has a right to give or withhold consent to a project that may affect the land they own, occupy or otherwise use. This is premised on the risk an individual stands to suffer in the event they are deprived of land before agreeing on the terms of compensation. The power disparity between government and individuals puts the affected person at a grave disadvantage if one has to negotiate after losing their land or property. To this effect, the government proposal to deposit an amount of money with the court as the aggrieved person mounts a legal battle is a fallacy. Given the time courts take to dispose of land matters, I would never advise anyone to settle for such an arrangement.

Hon. Betty Amongi’s justification of the amendment saying that government projects are being delayed by “errant” property owners along the project routes was addressed by the Supreme Court in the Asuman Irumba case. Government argued before court that public interest allows the infringement of the rights of a single individual for the sake of the greater community good. In the words of Justice Christine Kutumba of the Supreme Court, “That notwithstanding, it (the Constitution) does not give powers to government to compulsorily acquire people’s property, without prompt, fair and adequate compensation prior to the taking of possession of the property.”

Insofar as this court judgment is concerned, the proposed amendment of the Constitution raises questions of the democratic principle of separation of powers among the arms of government. Government (The Executive) is arbitrarily seeking to overturn the decision of the Supreme Court (The Judiciary), using its parliamentary majority (The Legislature).

What government ought to do in the circumstances is not to amend article 26, but amend the Land Acquisition Act and provide for mandatory expeditious disposal of matters concerning land acquisitions and compensations by the courts. This course of events will not only enable negotiation and compensation prior to the taking of property, but also allow government projects to remain on schedule. Anything less than this is a recipe for calamity in this already polarized society. 

* JAMES MUHINDO is a human rights advocate working with ACODE as the National Coordinator of the Civil Society Coalition on Oil and Gas.

* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM

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