Last week, the President opened his countrywide campaign to sensitise the population on the Constitutional (Amendment) Bill, which has met with a lot of opposition from the public.
In his first address on Radio West in Mbarara, the President warned that no individual landowner should hold the government at ransom by demanding billions of shillings for small pieces of land.
The President seemed to know the type of people who have been frustrating government projects by demanding excessive compensation for he was reported to have said “They come and buy all the land and hold the government at ransom…”
The situation which the President complained about has arisen due to government’s failure to enact a law on compulsory land acquisition as required by the Constitution.
It is well-known in legal circles that powerful people who get wind of government plans to buy land where a project will be located with a view to holding government at ransom when the time for assessing compensation comes. According to the available evidence, only land speculators with the right connection are guilty of this practice.
What is needed in order to fix this criminal practice is not to amend the Constitution, but to enact the law as directed by the Constitution.
Article 26(b) of the Constitution allows government to compulsorily acquire land under a law which makes provision for payment of fair and adequate compensation prior to the taking of possession or acquisition of the property. Parliament has not made this law and as such, any attempt to tamper with the Constitution will only lead to constitutional problems.
The Constitutional (Amendment) Bill cannot be used to bestow in the government an enforceable right. The rights sought by the government can only be enforceable through an Act of Parliament, which implements the constitutional provision.
The assumption that once the Constitutional (Amendment) Bill is passed government will be able to take over property without prior payment of compensation is misguided.
The essence of the doctrine of the rule of law is the requirement that a country is ruled under laws made according to Constitution, not otherwise.
Under the present Compulsory Land Act, the procedure for compulsory acquisition is well laid out as follows:
The minister makes a declaration by Statutory instrument stating that the land is required by government.
The minister appoints an assessment officer.
A notice of not less than 15 days is given inviting people with interests in the land to present their claims to the assessment officer.
The assessment officer on the day appointed hears the claims and makes an award basing on the current market price and immediately takes over possession of the land.
Compensation is paid for the value of the land if no appeal is made to the Land Tribunal or the High Court where the value exceeds Shs50 million.
In relation to the Constitution, the present Act is inadequate only as far as the time for taking possession of the property is concerned because this takes place upon the award being made by the assessment officer.
The solution to the problem government is facing lies in enact a law which ties compensation to market price and which defines the term prior payment in a manner that satisfies government and landowners’ interests in order to avoid any problem.
Lastly the addition of a sub-article in article 26 to allow government to take over property after depositing money in court does not repeal the requirement to pay prompt and adequate compensation before taking possession. The proposed amendment as it presently stands be inconsistent with article 26(b) making it unconstitutional.
Mr Mulira is a firstname.lastname@example.org