Proposed land amendment is patently unconstitutional

Thursday, 20 July 2017 - 11:02am

There are serious issues which arise from the timing of this Bill

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By Prof Joe Oloka-Onyango

There are four basic principles which govern the operation of Constitutional Law in any country. These include the separation of powers (checks and balances), the rule of law, respect for human rights and the basic structure doctrine.

The proposed amendment which seeks to make way for the compulsory acquisition of land by the government violates all of them without exception, but it particularly offends the last of these. Every constitution has a basic or fundamental framework by which it is governed.

The 1995 Constitution sought, among many other goals, to decentralise governmental power, to enhance the protection of the rights of women and specific minorities and to protect the country from the arbitrary exercise of state power whether by the Executive or the Legislature. 

With respect to the issue of land, the 1995 Constitution made a fundamental departure from all its predecessors through the declaration which opens Chapter 15, Article 237 of which states: “Land in Uganda belongs to the citizens of Uganda.” 

There are no “buts,” “ifs” or “howevers” about this declaration. What it means is that land unconditionally belongs to the citizen, a situation further buttressed by Article 26 which proclaims ownership of land a human right. And yet, the proposed (Amongi) amendment seeks — by indirect means — to amend this provision so that in effect it reverts to the situation where land in Uganda “belongs to the Executive arm of the State.”

Such a change would amount to a violent breach of the basic structure around which the citizens of Uganda agreed that land in the country should be owned and managed.  The proposed changes to the Constitution also run the danger of what the Supreme Court has described as “amendment-by-infection,” a situation where any alteration of a specific constitutional provision has spill-over effects on other parts of the document. 

The Court declared such amendments as illegal.  One can point to several sections of the Constitution (from the National Objectives to the chapter on amendments) which will be infected by the proposed amendment.

The Government has argued that the main problem with the existing constitutional scheme is that it has caused delays in the implementation of Government infrastructure and investment projects due to disputes arising over the compulsory acquisition of land. 

This may be true, but a number of questions arise about the causes for this delay rather than its manifestations. In the first instance, it is well known that the Government does indeed make very fast compensatory payments (sometimes of wildly inflated estimates) to those who belong to the military-political complex that is in charge of the country. 

For those with such connections, huge payments for rocks and even “air” is commonplace and do not present any problem for the projects in question. The payment of such compensation follows the order of “who-you-know” and how much you are willing to pay the State bureaucrats who control the Government purse-strings and not priority in time or order of merit. At the same time, we know that the Government has already dispossessed so many poor peasants from the Albertine oil-producing regions of the country and no compensation has been made even though the sums in question are relatively tiny. 

In other words, in the compensation “game” there are those whom the Government considers more deserving than others. The proposed amendment cannot address this fundamental contradiction in the system. Instead, what the amendment will do is further dispossess those who do not have connections by position, marriage or sycophancy to the ruling NRM government. 

In sum, the problem is not with the constitutional principle; it is with how the Government actually chooses to implement the principle of compensation.

Finally, there are serious issues which arise from the timing of this Bill. 

First of all, the Commission of Inquiry under Justice Catherine Bamugemereire is inter alia supposed to “assess the legal and policy framework on Government land acquisition.” That Commission is now being prevented from work by the spurious excuse of a lack of funding. 

By presenting the amendment at this time, the Government is signaling that the Commission is either a waste of time or that it will simply ignore its recommendations.  Secondly, the Government has promised to put in place a Constitutional Review Commission that is supposed to comprehensively consider the whole Constitution. 

Is the Government then confirming that such an exercise is mainly intended to marshal the age-limit removal rather than to actually address the many outstanding issues of constitutional reform that Ugandans have long awaited?

Writer is with Makerere University Law School