Uganda Forum Against Corrupt Entities

Fight corruption in your community

An interest in land can not be extinguished by legislation without compensation. Nampewo & Another v Attorney General (Constitutional Petition No. 10 of 2020) was wrongly decided by the Constitutional Court of Uganda

by · Published · Updated

Needed amendments to Land Act in Uganda

In the state of nature man’s life was short, brutal and chaotic. To protect his property and improve his life man decided to enter a social contract to form society. By forming society man did not give either his life or his property and therefore they form two of the most fundermantal and inalienable rights. No law can purport to deprive man of his right to life and property except the limitations that he accepted when he formed and subjected himself to the collective will of society.

In line with this social contract, article 26 of the Constitution of Uganda provides that the state shall not takeover the property of any person whether in public interest or not without adequate compensation. Taking of property by government action takes two forms:

  • Expropriation. This refers to take over of ownership rights such as use or occupation or the right to transact such that the owner is strip of the benefits or antecedents of ownership.
  • Regulatory takings. This refers to limitations to the ownership of property that don’t amount to physical takeover of land and don’t render ownership illusionary or worthless.

Section 35 (1)(a) of the Land Act provides that a tenant by occupancy who transacts with his or her kibanja interest in land without giving the land lord notice and the first option to purchase shall lose his or her interest in the land. However, the tenancy by occupancy can pass the interest under a will without the permission of the Landlord. In Nampewo & Another v Attorney General (Constitutional Petition No. 10 of 2020), it was argued that it was unconstitutional for the tenant by occupancy to lose his or her when he or she violates this section. The Constitutional Court of Uganda upheld the constitutionality of Section 35 (1)(a) of the Land Act.

  • The Court ruled that tenants by occupancy (bibanja holders) lose their interest in land and forfeit their tenancy if they attempt to sell or assign their tenancy rights without first offering the landlord the first option to buy.
  • The Court ruled that criminalizing tenants who assign or sell their tenancy without the landlord’s consent is a legitimate limitation on property rights and does not violate the Constitution. The provisions were deemed a valid legislative framework meant to regulate the balance between landlords and tenants.
  • The Court clarified that upon breach of this statutory requirement, the registered owner has no obligation to compensate the tenant for taking back the land.

It widely accepted that limitations to the right to property including taxation must be reasonable and proportionate as decided in Okiya Omtatah Okoiti v Commissioner General, Kenya Revenue Authority and 2 others as follows:

Tax inherently infringes the right to property, being an expropriation of one’s hard-earned money. It follows that for the tax to be lawful, the law introducing it must not only be lawful but it must meet the Article 24 analysis test in that it must be reasonable and justifiable in a open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

Okiya Omtatah Okoiti v Commissioner General, Kenya Revenue Authority and 2 others (2018) eKLR

Article 26 of the Constitution forbids the state from taking over the property of individuals without adequate compensation. The Supreme Court of Uganda has ruled that the state must pay the compensation before taking over the property. See, Uganda National Roads Authority v Irumba & Anor, SC Constitutional Appeal, No. 2 of 2014. The courts in Uganda have not addressed the constitutionality of laws that burden the use of property rather than amounting to a physical use or possession of the property of an individual by the state.

For example, Can KCCA deny planning permission to all unregistered land owners thus rending their land unusable without violating the law? Furthermore, can government outlaw the growing of maize by Ugandans without violating the right to property and the prohibition against state taking of property without adequate compensation? In the US, Current law distinguishes between per se takings, which involve unusually severe intrusions on private property and are treated with particular skepticism by courts, and milder intrusions on property rights that fall under the broader umbrella of “regulatory” takings. Under existing precedents, a law doesn’t count as a per se taking unless it deprives a property owner of “all economically beneficial or productive use” of their property, or subjects the property owner to a “permanent physical occupation” of their property. Court precedent emphasizes that a taking may more readily be found in circumstances where the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.”

However, court has often upheld substantial regulation of an owner’s use of his own property where it is deemed necessary to promote the public interest. The functional basis for permitting the government, by regulation, to affect property values without compensation is that “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law,” Government regulation by definition involves the adjustment of rights for the public good. Often this adjustment curtails some potential for negative implication for the use or economic exploitation of private property. To require compensation in all such circumstances would effectively compel the government to regulate by purchase. “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922). However, court precedent is clear that this does not apply to the relatively rare situations where the government has deprived a landowner of all economically beneficial uses.

In Andrus v. Allard, 444, artifact owner possessed artifacts composed of feathers of currently protected birds, but the artifacts existed before the statutory protections of the Eagle Protection Act (Eagle Act), came into force. The appellee was prosecuted for violations of the Eagle Act and the appellee brought suit and alleged that the statutes did not forbid the sale of appellee’s artifacts insofar as the constituent birds’ parts were obtained prior to the effective dates of the statutes. The district court agreed. The Supreme Court held that:

The regulations challenged here do not compel the surrender of the artifacts, and there is no physical invasion or restraint upon them. Rather, a significant restriction has been imposed on one means of disposing of the artifacts. But the denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full “bundle” of property rights, the destruction of one “strand” of the bundle is not a taking, because the aggregate must be viewed in its entirety. We hold that the simple prohibition of the sale of lawfully acquired property in this case does not effect a taking in violation of the Fifth Amendment.

Andrus v. Allard, 444.

Given that Parliament can impose substantial regulation on an owner’s use of his own property where deemed necessary to promote the public interest and it can lawfully affect property values without compensation for every such change in the general law, it means that not every restriction to the property rights constitutes a taking under Article 26(2) of the Constitution. The Supreme Court of Uganda was clear in Dimanche Sharon and 2 Others v Makerere University, Supreme Court Constitutional Appeal No. 2 of 2004 that parliament may impose such limits on the enjoyment of constitutional rights as a reasonably necessary to protect the public interest provided that they are narrowly tailored and do not unduly burden the enjoyment of individual rights. The nature of land ownership is that various individuals can own the same or different interests in the same land at the same time. Land has an extensive bundle of rights associated with land ownership including possession, use, transactional rights and very many other rights.

To constitute expropriation or per se taking a regulation of land ownership must deprive the property owner of all economically beneficial uses. This means that forbidding the growing or maize or any other crop where it serves a legitimate state interest and a reasonable way of achieving the state interest is not expropriation of the land since it can be used to grow a substantial number of other crops. The Constitutional Court in Nampewo & Another v Attorney General confused the right of government to criminalize transactions of a tenancy by occupancy without permission and the consequence that the tenant thereafter loses his or her interest in land. The government has power to impose such limitations to the rights of the land owner and can even criminalize the transactions but it can not extinguish or takeover or give away the property of the offender except as compensation or as part of the punishment. The problem is that compensation and punishment cannot be excessive and lead to the unjustified enrichment of either the state or the victim. Two principles are cardinal here.

  • Parliament can not imposed mandatory or excessive sentences that a bridge the discretion of court to consider both mitigating and aggravating factors. See, Attorney-General v Susan Kigula & 417 Others Constitutional Appeal No. 03 of 2006
  • Compensation must remedy the effect or loss incurred and no more. It can not be used as a cover or excuse to unjustly enrich the victim.

Yes the government has a legitimate interest to give land ownership the right to the first option to purchase and it is within the government power to criminalize breach of this requirement but requiring that the tenant by occupancy lose his or her interest in land is excessive and disproportionate. The government interest in protecting landowners is not strong enough to justify making the landowner lose his or her interest in land. The punishment is disproportionate to the crime especially where the lose of the right is mandatory rather than discretionary. Under Section 35 (1)(a) of the Land Act, the tenant by occupancy lose their interest whether their failure to give notice and the first option to purchase was justified or not.

  • What happens where the land lord makes it impossible for the tenant to serve the notice and give the option to purchase?
  • What happens where the landlord is not known?
  • What happens where the sale is contingent on obtaining the permission?
  • What happens where the landlord frustrates the tenant’s attempt to give notice and the first option to purchase?
  • What happens where there are contested landlords? Who is the right landlord to give notice and the first option to purchase?
  • What happens where the landlord can not be found?
  • What happens where the sale is a matter of life and death?
  • What happens to the buyer who purchases the interest and loses his or her life savings? What is his or her relief?

By legislation the government has extinguished the property interest of the tenant by occupancy without compensation. If government cannot take over private land for use in public interest why should it be able to take over land to benefit a third party? Does this mean that land can legitimately take over land of all criminals not being illicit gain connected to the offense by legislative action? Can government legislate that where anyone murders another, the beneficiaries of the murdered person become entitled to all the property of the Murder? If we simplify Section 35 (1)(a) of the Land Act, it states that if a tenant doesn’t give notice or a first option to purchase, the victim whose right was violated becomes sole owner of the land which was previously owned by both the landlord and the tenant by occupancy.

Tags:

Admin

Every action you take against corruption however small is a big step towards eradicating corruption in Uganda. So do something today to show that you are against corruption and impunity in your community

You may also like...