Case Title: Uganda National Roads Authority v Irumba & Anor
Court: Supreme Court of Uganda at Kampala
Case Number: Civil Appeal No. 2 of 2014
Date of Decision: 29 October 2015
Judges: Hon. Justice Bart Katureebe CJ, Hon. Justice Jotham Tumwesigye, Hon. Justice Stella Arach-Amoko, Hon. Justice Tsekooko, Hon.Justice Okello, Hon. Justice C.N Kitumba.
Topics: Constitutional Law, Land Law, Compulsory Acquisition, Right to Property, Public Interest.
Background and Relevant Facts:
The Uganda National Roads Authority (UNRA) appealed against a decision by the Constitutional Court that declared Section 7(1) of the Land Acquisition Act unconstitutional.
The respondents, Mr. Asuman Irumba and Peter Magelah, challenged the constitutionality of the provision after their land was compulsorily acquired by UNRA for the construction of the Kaiso-Tonya Road in Hoima without prompt prior compensation, as required by Article 26 of the Constitution of Uganda.
The Constitutional Court held that the Land Acquisition Act’s provision that allowed the government to take possession of land before paying compensation was inconsistent with the Constitution.
UNRA appealed to the Supreme Court, arguing that the constitutional court erred by interpreting the constitution instead of referring the peition to a competent court for enforcement after it had made a finding that Section 7(1) of the Land Acquisition Act was among provisions of the existing law ie laws prior to the promulgation of the Constitution that could simply be read with necessary modifications under Article 274 of the Constitution in order to bring them into conformity with the Constitution.
Issues Before the Court:
- Whether the compulsory acquisition of land under the Land Acquisition Act without prior payment of compensation is constitutional.
- Whether the provisions of Section 7(1) of the Land Acquisition Act were inconsistent with Article 26 of the Constitution.
- Whether the government’s actions in acquiring the respondents’ land were justified under the law.
Court’s Analysis and Findings:
- Constitutionality of Compulsory Acquisition without prior payment of compensation: The Supreme Court upheld the Constitutional Court’s decision, agreeing that the compulsory acquisition of land without prompt prior compensation was unconstitutional. The court emphasized that Article 26 of the Constitution guarantees the right to property, and any law that permits the government to take possession of land before compensating the owner contravenes this right.
- The court therefore held that Section 7(1) of the Land Acquisition Act, which allowed the government to take possession of land before compensating the owner, was inconsistent with Article 26(2)(b) of the Constitution. The court rejected UNRA’s argument that the provision was a necessary limitation on the right to property in the public interest ie to facilitate development projects, stating that the Constitution does not give powers to government to compulsorily acquire people’s property, without prompt payment of fair and adequate compensation prior to the taking of possession of the property.
- Jurisdiction of the Constitutional Court: The Supreme court reiterated that the Constitutional Court has original jurisdiction to interpret the Constitution and that this jurisdiction is not be limited or ousted by any other legal provisions that provide for interpretation of the law by other courts to bring it into conformity with the constitution such as Article 274 of the Constitution.
Decision of the Court:
- The Supreme Court dismissed the appeal by UNRA and upheld the decision of the Constitutional Court.
- Section 7(1) of the Land Acquisition Act was declared unconstitutional and nullified to the extent that it allowed for the acquisition of land without prior payment of compensation.
Ratio Decidendi (Holding): The Supreme Court held that any law that permits the compulsory acquisition of land without prior compensation violates the constitutional right to property under Article 26. The court affirmed that development projects, while important, must adhere to constitutional safeguards owing to Uganda’s history characterised by government takeovers of people’s land without compensation.
Law Applied:
- Constitution of Uganda, 1995: Article 26(2) guarantees the right to property and stipulates that no person shall be compulsorily deprived of property without prompt prior compensation.
- Article 137 of the Constitution; Original Jurisdiction of the Constitutional Court to interpret the constitution
- Ismail Serugo and Another Vs Kampala City Council and Another Constitutional Appeal no 2 of 1998; a case for constitutional interpretation is made out once a petition makes allegations which fit with the provisions of Article 137(3) (a) and (b) of the Constitution.
Quote: “Article 26 of the Constitution requires prior payment of compensation for the deprivation of property by the Government. Article 43 of the Constitution limits the enjoyment of fundamental rights and freedoms where it is demonstrably justifiable and if provided for by the Constitution. The provisions are very clear and I cannot appreciate the arguments by appellant’s counsel that when one reads Articles 26 and 43 together taking one’s land prior to compensation becomes constitutional. This in my view would be contrary to the rules of Statutory and Constitutional interpretation. Where a provision of the law is clear it must be interpreted as it is. The authority of Paul K. Semwogerere and 2 others Vs Attorney General (Supra) does not permit interpretation of new words which result into constitutional amendment. It is evident from Article 44 that Article 26 is not indicated among the non derogable rights. That notwithstanding, it does not give powers to government to compulsorily acquire people’s property, without prompt of fair and adequate compensation prior to the taking of possession of the property.” – Justice C.N.B. Kitumba, Acting Justice of the Supreme Court.
Counsel for the Parties:
- Appellant: Ruth Sebatindira and Olive Matovu
- Respondents: Francis Tumusiime.
Comments
This case is a landmark ruling that underscored the supremacy of the Constitution in protecting property rights against unlawful compulsory acquisition. The decision illustrated that development must not come at the expense of constitutional rights.
It also clarified on the originality of the jurisdiction of the Constitutional Court to interpret the Consitution by stating that that jurisdiction is not ousted by another law that may empower another Court to interpret an existing law to bring it into conformity with the Constitution.
