By Sam Mayanja, lawyer
It is a short one pager Constitutional Amendment Bill. It does not tamper with the provisions of Art. 26, which guarantees the right of Ugandans to own property either individually or in association with others.
It has left intact prohibition to the Government not to compulsorily deprive any Ugandan of property or any interest in or right over property of any description except where such compulsory taking is dictated by necessity for public use or in the interests of defense, public safety, public order, public morality or public health.
The amendment does not tamper with a citizen’s right to prompt payment of fair and adequate compensation and the right of access to a court of law in cases of dispute.
The slight amendment introduced by the Bill is a replacement of compensation “prior to the taking of possession or acquisition” with an addition of more progressive enactment of sub articles 3, 4 and 5, which allows the Government to deposit the compensation awarded into court and it is only after that deposit would the Government take possession of the property.
The progressive nature of the Amendment is clear in sub Articles 4 and 5 extending to the property owner free and unlimited access to the funds deposited in court without prejudice to the dispute resolution process, if any, taking its course. Which dispute must be resolved within the timeline to be set by Parliament.
It is, therefore, apparent that the Amendment Bill is more progressive than any other law on compulsory acquisition since Independence. Article 22 in the 1962 Independence Constitution is devoid of any time frame as to payment of compensation either in time or space. Instead the 1962 Constitution only provided for the right of a property owner who is disgruntled with the Award extended to him by the Government, access to the High Court whether direct or on appeal. A provision in the 1967 under Article 13 was no different from that in the 1962 Independence Constitution. The Land Acquisition Act which operationalised the above Constitutional provisions empowered the High Court on the application of the Attorney General to order payment of the Compensation to be deposited to court on such conditions as the court may think appropriate.
Article 26 of the current 1995 Constitution carries provisions similar to those enacted in both the 1962 and 1967 Constitutions but initiates a unique innovation providing for “payment……. prior to the taking of possession …………” It does not give time frame for dispute resolution which has led to the mischiefs which have been identified in the operationalising of this innovation and set out in the Memorandum to the Bill.
These mischiefs cannot be wished away and the Amendment Bill has set out progressive proposals of eliminating them, balancing the rights of the individuals set out in Articles 26 (1) and (2) while at the same time catering for the greater interest of the nation at large. The services are brought closer to the people with the Amendment provision of automatic access to the High Court through the act of depositing the award in court and allowing unlimited access to the money by the property owner as he or she pursues contestation of the adequacy of the quantum.
The Amendment Bill, therefore, does not tamper with private property rights of citizens to their property. Rather the property owner gains a right, so far as money can do it, to be put in the same position as if his property had not been taken away. He gains the right to receive a money payment not less than the loss imposed on him in the public interest, but on the other hand no greater.
The whole process of compulsory acquisition including the assessment of the quantum, which the Government awards, is set out in detail in the Land Acquisition Act. The action of depositing that award in court simultaneously as the Government takes possession of the property provides a greater Constitutional guarantee of a citizen’s right to property than all other Constitutional provisions which the country has had in its recent history. In this scheme of things, the voices telling the population that the Government is trying to rob them of their land without compensation and prophesising Armageddon are only playing the Biblical Soul’s kicking against the pricks.
The writer is a Senior Partner at the Kampala Associated Advocates