Compulsory Acquisition of Cultural Sites
Earlier this year, the Historical Monuments Act of 1968 was repealed by the Museums and Monuments Act 2023. Once land is declared under the said 2023 Act or was declared under the repealed law as a cultural or natural heritage site, it can be compulsorily acquired by the Government – in other words, the Government can acquire that ‘site’ without the consent of the owner. However, for such an acquisition to be lawful, Sections 25 and 27(2) of the Act guide that it must be in accordance with Article 26(2)(b) of the Constitution.
According to Article 26(2)(b) of Uganda’s 1995 Constitution as amended, privately owned land can only be compulsorily acquired by the state upon prompt payment of fair and adequate compensation prior to the taking of possession.
In the case of UNRA v. Irumba Asumani & Anor S.C. Constitutional Appeal No. 2 of 2014, the Supreme Court upheld the Constitutional Court’s decision that Section 7(1) of the Land Acquisition Act Cap. 226 is unconstitutional (inconsistent with Article 26(2) of the Constitution) in so far as it permits the Government to compulsorily take possession of land without first compensating the owners.
But what amounts to a fair and adequate compensation? Neither the Constitution nor the Land Acquisition Act offer a definitive answer to this pivotal question. Judicial decisions though, do shed light on the contours of fair and adequate compensation. For example, in the case of Sheema Cooperative Ranching Society & 31 Ors v. Attorney General [2013] UGHCLD 21, it was established that a fair and adequate compensation is one that is based on the market value of the land at the time of payment. In the Sheema case (Supra), the Government had valued the plaintiffs’ land in 2005 but commenced payments in 2009. Rubby Aweri Opio, J., as he then was, held that the compensation award offered by Government pursuant to their valuation report of 2005 was outdated and inadequate since it was not based on the 2009 market value of the land. The Judge therefore ordered that a fresh revaluation of the plaintiffs’ ranches/land be conducted using the market value of 2010.
It is also imperative to note that in compulsory land acquisitions, Courts find valuations done by the Chief Government Valuer more convincing than those done by private companies as was the case in Goodman International v. Attorney General & Anor [2019] UGHCLD 21. In addition, Section 19(3) of the Surveyors Registration Act Cap. 275 prohibits the engagement in survey practice without a valid practicing certificate from the Uganda Surveyors Registration Board. And as rightly stated by Justice Monica Mugenyi in the case of Jennifer Nsubuga v. Micheal Mukundane & Anor [2023] UGCA 98, “That prohibition is as broad as it is unequivocal”. It thus follows that all surveyors including valuation surveyors whether working with Government or in private organisations, must register and be in possession of a valid practicing certificate before engaging in or carrying out the practice of surveying.
In conclusion, the ‘compensation before possession’ requirement in Article 26(2)(b) of the Constitution is mandatory and has no exceptions; and credit goes to the framers of the Musuems and Monuments Act 2023 for aligning the practice of compulsory acquisition of cultural sites with the said constitutional requirement. It would therefore be unlawful for the Government to compulsorily acquire or take possession of any cultural or natural heritage site without first promptly paying the owner(s) if any a compensation that is based on the current market value of the land/site.
