Grabbing with Impunity
A significant portion of my 2016 presidential campaign underscored the need for immediate actions to halt the land-grabbing scourge. Land grabbing, here refers to large-scale land acquisitions, mainly, by foreign agribusiness invest ors, or the extraction industry—that are often preceded by grabbing of the land by government (including local government), the military, government/ military officials, and even clan elites. These grabs are possible when land law is confused or complex; when legal literacy (understanding of legal rights, protections, benefits) of the population is low; and when land administration structures and processes are weak. On the other hand, small scale land grabbing can occur in many other forms: through borrowing, encroachment over time, and marriage and wife inheritance, etc. For the purposes of this discussion, the focus is on state-linked land grabbing referred to above.
Land grabbing and the attendant displacement of large numbers of people, often using very brutal means, is developing into a serious national security problem. Two recent developments are of special concern: 1) The embattled “Minister” Amongi’s very deceitful and confusing announcements regarding changing the land law in Uganda; and 2) the current pressure reported by Uganda’s media to ‘accelerate land registration’, particularly in the Northern region where land use is governed by customary law. The key questions that must be addressed first are why? Why now? ‘Why is changing land law being pitched by the Museveni regime as a quick fix to prevent land grabbing and resolve land disputes?
Why the rush?
There has been a creeping economic crisis for quite some time. Escalating consumption, on the one hand, and declining production, on the other, have been the main drivers of the crisis. Uganda’s debt, both domestic and foreign, has been rising very fast. While some of the borrowing has been for infrastructural projects, there is massive overpricing due to corruption and to create slash funds.
Huge amounts of money have been spent on securing the survival of the regime, rather than investing in the public goods. Colossal amounts are spent on rigging elections, massive security networks and paramilitary organisations, the burgeoning patronage network (including funding legions of sycophants), opulent spending in State House etc.
In order to keep a lid on inflation, the Central Bank escalated the lending rates of the banks, curtailing borrowing for business and investments.
This further suppressed production and, correspondingly, the tax revenue available to the government. Additionally, the commodity prices of most of our exports (coffee, tea, cotton, etc) have also been falling, reducing our country’s foreign earnings and correspondingly the revenue for government.
Anticipated Oil revenues greatly encouraged the reckless spending and policies. It was believed that once the oil started flowing, all the holes that would have been dug in the economy would be quickly filled, securing a return to normalcy. This didn’t happen. This is the genesis of the very tight corner in which the Museveni regime finds itself. Commercial agriculture and the extractive industry are considered to offer the regime a flicker of hope of surviving the, now explosive, economic crisis.
The status of northern region
Northern Uganda is considered a potential breadbasket for the country, and its competitive advantage also relies on natural resources such as minerals and petroleum. It is estimated that 30-50 per cent of the richest mineral and petroleum deposits are found in the northern region. Nevertheless, people living in Acholi account for half of all Ugandans living in poverty; and yet they comprise 24 per cent of the overall population of the country. Their primary economic activity is subsistence agriculture and very few have access to alternative forms of capital.
It would seem that according to the regime, in order for the north to pull itself out of poverty and contribute to higher shares of government revenues, exports, energy, and food needs for the rest of the country, the north must be transformed and be placed under the control of foreign investors via senior government officials. The regime believes that the key to accelerating transformation is access to land and land markets by controlling the law that creates the markets for acquisition, buying, selling, leasing and taxation.
The biggest barrier to the regime carrying out a massive land-grab from the people in the north is that approximately 90 per cent of the land is secured by customary tenure and associated law. Only 1 per cent of the land is actually registered as free hold in urban areas. In short, the only thing preventing the rape of Northern lands is the 1995 Constitution, which bestows radical title and ultimate ownership of land with the people of Uganda. This includes the right to hold a piece of land according to customary law.
The role of beleaguered Minister Amongi in legalising State-based land grabbing: A Pawn of the State?
Given the importance of acquiring northern Ugandan lands for purposes of extracting every Shilling out of it, it is not a coincidence that the regime named Betty Amongi, from the northern region and member of the Opposition (UPC), the “Minister of Lands”.
On August 1, 2016 on behalf of the regime, Ms Amongi released a statement that government intended to propose an amendment to the law that would remove the requirement for compensation prior to acquisition of land for public works. These proposed amendments were announced despite having admitted in 2013 that government has not handled compulsory acquisition responsibly: “the Central Government has not, in the past, exercised this power responsibly and in the public interest.’ In addition, this same land policy document indicates that the regime is without sufficient capacity to meet compensation requirements, meaning they simply cannot afford to pay people for their land.
The Ugandan public, civil society, religious leaders, and members of all political parties, reacted immediately to these proposals and quickly ascertained that they were nothing but one big land grab. To-date, land allocations have taken place within incomprehensible or non-existent processes and procedures.
To make matters worse for herself, Ms Amongi on August 26, 2016 called a press conference announcing three primary responses to the outcry of the public.
First, the Ministry of Lands is suspending giving out land titles on public land for three months; the exception being the areas where Mr Museveni determined is needed for national purposes.
Second, she announced the creation of two subcommittees: the first is to address land evictions (to create a ‘policy framework’) and conduct civic education regarding tenancy with a specific focus on Buganda; and the second is to create a government land registry for the purposes of surveying the land and demarcation.
And finally, she announced that they will be making an amendment to Article 26 of the 1995 Constitution to add a third clause related to compensation. Article 26 of the 1995 Constitution states that “no person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied—(1) the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health; and (2) the compulsory taking of possession or acquisition of property is made under a law which makes provision for (i)prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property.”
As ascertained above, Ms Amongi’s statements indicated that the changes to the law would allow the regime to take land prior to compensation. In the worst-case scenario, as has happened in Nigeria, those who have had their lands taken may never be compensated.
These proposed changes are currently unconstitutional, which explains why Ms Amongi now intends to add a vaguely worded clause to the Constitution which would allow a government land appraiser to ‘deposit’ money on account should there be a dispute over the amount to be compensated, pending a resolution of the courts. According to Ms Amongi, this ‘deposit’ would satisfy condition (2): “prior adequate compensation”.
In short, Ms Amongi fully intends to invoke different portions of the out-dated and undemocratic Land Acquisitions Act, which was created in 1965. She intends to do this despite a recent Supreme Court decision – Uganda National Roads Authority Vs. Irumba Asumani & Peter Mageleh, (Supreme Court Constitutional Appeal No.2 of 2014), which determined that the Land Acquisition Act (Cap 226) is unconstitutional as it provided for the compulsory acquisition of property before the payment of compensation of the owner. The Supreme Court determined that the act of the National Roads Authority was inconsistent with Article 26 Clause 2.
Minister Amongi’s announcements have changed nothing. Some purposeless committees will be set up, Museveni will still get to take whatever land he wants, and fundamental protections enshrined in the current Constitution will be stripped away.
In fact, Amongi’s proposed amendments will only serve to make land grabbing constitutional. Take for example the disputed lands of Apaa, in Amuru District. Museveni at any time can and will identify that area for a new sugar factory and grab the land in the name of ‘national interest’. The people of Apaa will certainly rise up and challenge these offensive violations of their rights. We know that government is broke.
If the regime has its way, the following scenario is imminently possible: an appraiser will deposit, lets say, one million shillings in the court’s “bank account”, expecting a trial to ensue. But where will the people of Apaa find the money to pay for lawyers to represent them in court? In the end, land will still be grabbed by the regime and the people of Apaa will be completely dispossessed.
To add insult to injury, Amongi stated that the public misunderstood her previous announcements. I disagree. Our citizens do understand land. Ugandans are a proud and resilient people. Many are impoverished, but being impoverished does not mean being ‘ignorant.’ Amongi holds our citizens in contempt.
These recent statements were a disgrace and can have disastrous consequences. Violent evictions by the police and Ugandan People’s Defence Force will increase and hundreds if not thousands more land defenders will languish in jail, particularly in the northern region.
If she continues going down this same path she may become a traitor to her constituency, to northern Uganda, and the country at large. She’s best advised to resign before the situation deteriorates further.
Our land is our security. It is our most valuable asset. If we are not vigilant, much of Uganda’s land could very well end up under the control of a privileged few. In 2016, Karamoja remains the poorest region in the country.
Acholiland is recovering from decades of war. It is estimated that the northern region would need to attain economic growth rates of 11 per cent per year for 25 years (2040) to achieve parity with the rest of the country. In order to meaningfully address poverty in this part of the country, investors must be attracted and investments must be made in commercialising agriculture. However, the critical first step is to block any changes to the Constitution that will make it easier for the state to grab land. Any such changes will only serve to make already impoverished people more vulnerable and may lead to a class of people that are completely landless. wewInstead, we must first take immediate and measured steps to address land grabbing and find ways to address the impunity of government officials and security organs. Investment and national development must not happen by extinguishing people’s constitutionally protected rights to their traditional land.
This is why I have consistently called for the following:
1. Citizens of Uganda, regardless of political party, tribe or religion must reject outright the proposed amendment to Article 26 of the 1995 Constitution.
2. Moratorium on State-based land grabbing in northern Uganda and across the country:
•Government must immediately suspend further large-scale land acquisitions until a formal inquiry is made, a critical legal analysis of current land law and related corruption is carried out, and the low levels of public knowledge regarding land tenure and rights are addressed.
•Law enforcement bodies and the judiciary must enforce relevant laws and the rights of the citizens of Uganda considered binding (including customary) law;
•Land defenders must be protected from further violence and law enforcement agencies must ensure immediate investigation into allegations and/or threats of violence
3. Critical Legal Analysis of current land law and related corruption
•A legal analysis must be conducted into the practical and long-term ramifications of the current land laws as they are applied; including, the protections of customary tenure governed by indigenous law, the benefits/drawbacks of customary land registry and registering via Certificates of Customary Ownership;
•Determine the extent to which land governance structures – including District Land Boards and Area Land Committees – are debilitated by bribery and fraud. Recommendations must be made public.
4. Formal inquiry into large-scale land grabbing by state authorities:
•Government must establish a judicial inquiry into accusations of land grabbing and fraudulent behaviour by state officials in respect to land acquisitions; these proceedings must be conducted with a view to land restitution and victim compensation.
The results of the inquiries must be made publically available within a specified time.
5. Establish a human rights based process to screen investors and prioritise those who promote transparency in process, and reject investment in projects —unless;
a) the proposed projects can demonstrate free and prior informed consent by the family, community or clan impacted by the proposed development;
b) the aforesaid companies must demonstrate through their business practice / philanthropic frameworks a commitment to the UN Guiding Principles for Business and Human Rights; the same due diligence would also be expected of their supply chains
6. Campaign to address low levels of knowledge related to land tenure and rights:
•Despite legal protections offered by the 1995 Constitution of Uganda and the 1998 Land Act, people continue to be disenfranchised because of lack of knowledge of basic land and resource rights protected by law. Ugandan communities require information regarding customary tenure and statutory law, legal registration processes, land markets, and land acquisition procedures.
In the meantime it is important to make the following recommendations to Ugandans whose land is currently protected by customary law:
a)Occupy your land: plants trees, cultivate, demarcate
b)Do not rush to register: Until you have comprehensive understanding of your land rights.
c)Lobby your MPs, district officials and local council members to support the above plan and TAKE ACTION.