RED FLAG RAISED ON LAND TITLES: THE NATIONAL LAND INFORMATION SYSTEM HAS ERRORS, NOT SUPPORTED BY LAW, SURVEYORS APPEAL TO LAND PROBE COMMISSION
“We have lamented for years over land acquisition challenges faced by Ministries, Departments and Agencies of Uganda government but we thank President Museveni for setting up the Land probe Commission which has finally brought all MDAs to document this together”, said National Water and Sewerage Corporation Deputy Managing Director, Engineer Johnson Amoyo
Thank you Land Probe Commission for allowing us share what we go through. Land acquisition is the biggest challenge in government as it affects physical planning and budgeting.
Engineer Johnson Amoyo said this while closing a one day seminar between the Commission of Inquiry into land matters and government ministries, departments, agencies on matters of government land acquisition in Entebbe.
Amoyo said the documented challenges need authorities (Executive, Parliament and Judiciary) to act on them urgently to help Nation move on.
“Land acquisition is a complex process that is political, social, economic, gender, public interest verses common good which has a potential to move country ahead or stagnate it”.
He said these problems seem common, we know them, what has stopped us from addressing them. We have a lot of trust in the Commission of Inquiry into Land Matters, all government MDAs know that you can solve their challenges.
The Commission of Inquiry into land matters chaired by Hon. Lady Justice Catherine Bamugemereire, had an engagement with Government Ministries, Departments and Agencies (MDAs) at Serena Hotel in Kigo-Entebbe.
In her opening remarks, Hon. Lady Justice Catherine Bamugemereire raised the concern of the outmoded land acquisition act drawn in 1965 that is lopsided and outdated and can therefore not solve twenty-first-century land challenges. She noted that Governments and related agencies are under increasing pressure to deliver public services in the face of an already high and growing demand for land. The purpose of the engagement, therefore, was to dialogue about TOR5 of the Commission’s Terms of Reference which mandates it to; assess the legal and policy framework on Government land acquisition.
Among the MDAs that attended were; Uganda National Roads Authority Executive Director, Allen Kagina, National Water and Sewerage Corporation represented by its Deputy Managing Director, Engineer Johnson Amoyo, who also gave the closing remarks. Others who attended were the Executive Director of Uganda Land Alliance, Akwi Ogojo, the Executive Director of Land-Net, Engineer Kasingye Kyamugambi whose presentation generated an exhaustive debate on the challenges MDAs face in matters of land acquisition, the legal advisor of Uganda Electricity Generation Company, Ms. Beatrice Kulume, Ms. Esther Mulyangonja of Uganda Electricity Transmission Company Limited and other representatives from key MDAs that handle land acquisition in Uganda.
The challenges of compulsory land acquisition that were identified include; destruction of livelihoods and families by compensation, non-monetary value of land, compensation for land in protected and conservation areas, capacity of land acquisition units, duplication of acquisition and compensations by different agencies in the same area, district compensation rates which are not in place, outdated or not reflective of the new developments, information sharing, planning and execution of land acquisition, challenges and mapping among other challenges.
The recommendations made to the effect were that; there is an urgent need for financial literacy to the compensated Project Affected Persons (PAPs) to address wastage of the received compensation and destruction of persons and families, the need for consideration of non-monetary values attached to land, the need for Government to come up with a clear policy on compensation of wetlands, forests and wildlife, recruitment of professional valuers among other suggested recommendations.
Some members raised issues around the legality of Chief Valuer’s legality and the National Land Information System has components like survey and mapping which are not accurate. The land probe commission was asked to recommend need to revisit base maps before many titles are given out.
The Constitution of the Republic of Uganda
The Constitution provides for both the protection of private
property rights and the power of the government to acquire land compulsorily.
Article 237(2)(b) empowers the Government or a local government, subject to
article 26 of the constitution, to acquire land in the public interest; and the
conditions governing such acquisition shall be as prescribed by Parliament.
Public interest is subjected to the taking of possession or acquisition being
necessary for public use or in the interest of defence, public safety, public
order, public morality or public health (article 26(2)(a)). Secondly, the
compulsory deprivation of property or an interest in or right over property of
any description can only be made under a law which makes provision for prompt
payment of fair and adequate compensation prior to the taking possession or
acquisition of the property, and a right of access to a court of law by any
person who has any interest or right over property (article 26 (2) (b)). This
broad constitutional provision has not been translated into more specific
legislation, which means that interpretations of “public use” and “public interest” vary and this leaves room for misuse of these terms in justification for any land taking or acquisition. This
lack of clarity weakens the country’s land governance environment.
The Land Acquisition Act, Cap 226
The LAA is the central law
applicable to land acquisition in Uganda. It is however, not entirely in line
with the constitutional provisions. For example, it does not require payment
prior to taking possession of the land. Section 7 allows the assessment officer
to take possession of the
land “as soon as he or she has made his or her award under section 6, except that he or she may take possession at any time after the publication of the declaration if the Minister certifies that it
is in the public interest for him or her to do so”. The LAA also leaves broad authority in the hands of the Minister of Lands (and persons authorized by the Minister) as section 3 provides
that “whenever the Minister is satisfied that any land is required by the Government for a public
purpose, he or she may, by statutory instrument, make a declaration to that effect”. The law does
not define what constitutes a “public purpose”. In 2014, the Supreme Court in the case of Uganda National Roads Authority vsIrumbaAsumani and Peter Magelah, declared that the LAA was unconstitutional in so far as it did not allow for prior payment of compensation. Other jurisprudence has identified concerns related to standards of prompt, fair and adequate compensation (see Pyrali Abdul RasulEsmailvs Adrian Sibo (Constitutional Petition No. 9 of 1997)). The law does not define the basis of compensation assessment nor the valuation method to be used to arrive at the compensation figure; however section 20 of the Act empowers the Minister, by statutory instrument to make regulations for the assessment and payment of compensation. No such regulations have been written since the enactment of the law in 1965.
The Land Act, Cap 227 The Land Act under section
42 empowers the Government or a local government to acquire land in accordance
with articles 26 and 237 (2) of the Constitution. The principles of computation
of compensation in section 77 only provide guidance to District Land Tribunals
on assessing compensation in case of a dispute relating to the amount of
compensation to be paid. The section is not instructive to the valuer and the
provision does not meet the standard of fair and adequate compensation (e.g. it
provides that the value of the buildings shall be taken at depreciated
replacement cost for the rural areas).
The Mining Act 2003 Section 82(2) stipulates
the need to compensate the land owner or occupier of land under which
are minerals “reasonable compensation for any disturbance of the rights of the owner or
occupier; and for any damage done to the surface of the land by the holder’s operations; and shall on demand made by the owner of any crops, trees buildings or works so damaged…” This provision makes compensation for any disturbance of the land to the owner or occupier and for
loss of any crops, trees, buildings only consequent upon “demand” and not an “entitlement” with or without demand. The Act lacks clarity on what constitutes “reasonable compensation”. The Mining Act also sets a limitation clause to claims as compensation has to be demanded within one year from the date of occurrence of the act upon which compensation is based, otherwise the claim is not enforceable, “notwithstanding the provisions of any other written law” (Section 82(3)).
The Petroleum (Exploration, Development and Production) Act, No 3
of 2013 The interest in land in a development area belongs to the land
owners. The Government of Uganda, however, is vested with the interest in the
petroleum in or under any land or water in Uganda. Subject to any law relating
to acquisition of land, and section 135 of the same Act, a holder of a
petroleum production licence may obtain a lease of the land or other rights to
upon such terms as to the rent to be paid for the land… as may be agreed upon between the holder of a licence and the land owner. A licensee should pay to the land owner a fair and reasonable compensation for any disturbance of his or her right and for any damage done to the surface of the land, any crops, tree, building or
works”. The basis upon which compensation is payable for damage to the surface of any land is the extent to which the market value has been reduced by reason of the damage, but without taking into account any enhanced value due to the presence of petroleum. Payment of rent or compensation to a land owner for termination of his or her lawful occupancy is deemed to be adequate compensation for deprivation of the use of the land to which the rent or compensation relates. Land owners who are dissatisfied with any compensation offered by a licensee should have the dispute determining by the Chief Government Valuer.