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MPs key in the battle to save Mabira

By Vision Reporter

Added 29th March 2007 03:00 AM

THE first dilemma Ugandans are facing on the Mabira forest giveaway is that in the Constitution and the Land Act, we vested land in the citizens of Uganda in Article 237(1) thus resolved an important historical anachronism in law but created serious ambiguities.

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THE first dilemma Ugandans are facing on the Mabira forest giveaway is that in the Constitution and the Land Act, we vested land in the citizens of Uganda in Article 237(1) thus resolved an important historical anachronism in law but created serious ambiguities.

By Margaret Rugadya

THE first dilemma Ugandans are facing on the Mabira forest giveaway is that in the Constitution and the Land Act, we vested land in the citizens of Uganda in Article 237(1) thus resolved an important historical anachronism in law but created serious ambiguities.

First, it is not clear whether the citizens of Uganda, individually or collectively, can assert this authority against the state, which is what we are labouring to collectively achieve through various ways such as the “do not buy Lugazi sugar campaign”. This is a sensitive issue that needs to be clearly handled in the National Land Policy to avoid beautiful statements that are cumbersome to implement.

Article 237(2)(b) says that Government or a Local Government shall hold in trust for the people and protect natural lakes, rivers, wetlands, forest reserves, game reserves, national parks and any land to be reserved for ecological and touristic purposes for the common good of all citizens. Therefore, the the Government is a trustee for the citizens of Uganda.

Does a trustee have powers to dispose off the property of beneficiaries (the citizens)? This matter is not clearly developed and is gap that must be closed. It is the duty of the state to organise, regulate, and mediate land ownership relations for sound development.

Section 44(4) of the Land Act specifically says that Government or a Local Government shall not lease out or otherwise alienate any natural resource named in Article 237(2)(b) of the Constitution. This is exactly what they are attempting to do. In the national land policy issues for consultation, it is stated that over the years, the Government has abused the doctrine of trusteeship to the extent that Ugandans thought vesting the allodium title in the citizens of Uganda in article 237 (1) would help solve the problem, but the persona or institution to exercise this power is unknown or was never stated, neither is there a procedure on how this constitutional right can be put to use in a situation such as that of Mabira.

Section 44(5) of the Land Act says concessions and licenses or permits may be granted in respect of natural resources such as Mabira. Section 44(6), which now seems to be the only option we are looking at to save the nation, grants power to Parliament to review the status of any land held in trust by the Government if the community in the area or district where the reserved land is situated so demands, not when the Cabinet or the presidency or Mehta demands.

It is the duty of MPs to critically review their powers entailed in this section of the law and exercise their duties without reference to their so called partisan inclinations (whether NRM, FDC or Independent).

The Mabira forest give-away, if it happens, will be a classic case of the abuse of the “doctrine of Public Trust”. In essence the Government will be abusing the confidence, trust and custodianship ordinary Ugandans have granted to it under the patronage of the state.

The key question to answer is how far, after all, should powers over land and natural resources vested in the state go? Are there sufficient safeguards to strengthen the public trust doctrine enshrined in Article 237(2)(b) of the Constitution and Section 44 of the Land Act?

At the moment it is still ambiguous and needs to be clarified. If left to lie unattended, then Mabira won’t be the first and last of natural resource to be crucified on the altar of investment and development.

The writer is a researcher and consultant on land and natural resources

MPs key in the battle to save Mabira

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