KAMPALA, Uganda: Constitutional Court held that Section 10(5)(c), which allows taking possession before a court resolves compensation disputes, is unconstitutional

However, Sections 6(5)(a)-(c), 10(5)(d), and 15 were found consistent with the Constitution, as they provide for judicial discretion and situations where the landowner cannot be traced or refuses payment. The Court declined to pronounce on the Masindi order due to lack of a record and found no constitutional breach in the government’s failure to enact new legislation. | The Constitutional Court has ruled that section 10(C) of the Land Acquisition Act 1995 is unconstitutional, as it provides for the compulsory acquisition of private property for as long as the government has deposited the accessed compensation in court.

The ruling arose from the petitioner Omara Daniel and two other organisations, Advocates for Natural Resources and Development and Resources Rights Africa Limited, against the respondent, who is the Attorney General and the Uganda National Roads Authority.

The petitioners challenged Sections 6(5), 10(3)-(5), and 15(1)-(2) of the Land Acquisition Act (Cap 235), contending that they contravenated Articles 21(1), 22(1), 26(1)-(2), and 28(1) of the Constitution by allowing the government to compulsorily acquire land and take possession before prompt and adequate compensation.

The 1st petitioner asserts that much as the Constitution permits the Government of Uganda to compulsorily acquire land for public use, such acquisition can only occur under the parameters set in the Constitution, which include payment of prompt, fair and adequate compensation prior to the taking of possession or acquisition of property.

In the affidavit sworn by Sam Tusubira (SA), the 1st respondent contends that section 5(5) of the Land Acquisition Act does not state the compensation sums deposited in court as a full and final settlement of the project affected persons. The deponent contends that section 6(5) of the Act does not impede landowners from collecting the assessed sums as they challenge its inadequacy before courts of law.

It is further contended that the 1st respondent only takes over land after execution of agreements with affected persons and payment or compensation for land in case of disputes; the land is possessed after acquiring a court order for depositing the sums into court in accordance with section 10(5) of the Land Acquisition Act. It is averse in the affidavit that the 1st respondent exercises due diligence, including valuing the property to be acquired, and project-affected persons are offered an opportunity to present their case before a decision to compensate is made.

The Constitutional Court held that Section 10(5)(c), which allows taking possession before a court resolves compensation disputes, is unconstitutional

However, Sections 6(5)(a)-(c), 10(5)(d), and 15 were found consistent with the Constitution, as they provide for judicial discretion and situations where the landowner cannot be traced or refuses payment. The Court declined to pronounce on the Masindi order due to lack of a record and found no constitutional breach in the government’s failure to enact new legislation. The petition partially succeeded, and no costs were awarded.