Advocates for Natural Resource Governance & Development v. Attorney General, Const. Petition No. 40 of 2013 (November 8, 2013)
Constitutional Court of Uganda
The petitioners challenged the compulsory acquisition of land for the purpose of constructing a road to facilitate oil exploration and development activities in the Hoima District of Uganda. The primary claim was that land was expropriated without prior, prompt payment of compensation (no claims were made regarding land valuation). In addition, the petitioners alleged that provisions in the Land Acquisition Act violated Article 26 of the Ugandan Constitution, which protects the right to property and guarantees prior, prompt payment of adequate compensation when land is compulsorily acquired.
The Constitutional Court noted that the Land Acquisition Act preceded the current Constitution of Uganda, adopted in 1995, by nearly 30 years. The current Constitution plainly requires compensation to be paid prior to expropriation, and was intended to rectify a past history of inequitable treatment of landowners. The Court declared that Section 7(1) of the Land Acquisition Act does not specify that compensation must be paid prior to land acquisition; therefore, it is contrary to the Constitution. However, the Court declined to strike down Section 7(1). It pointed to Article 274 of the Constitution, which allows courts to construe laws that pre-date the Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution. This could be accomplished by reading “prior payment” into Section 7(1) of the Act.
Under this interpretation of the Land Acquisition Act, the government of Uganda violated Article 26 of the Constitution by failing to pay compensation to the petitioner before it expropriated his land.
The Court made no order as to costs. It declared: “[P]arties who seek to enforce in courts of law fundamental human rights enshrined in the bill of rights in this country’s Constitution should not seek legal costs. This is a good practice that was adopted in this very petition. The rationale for this is that no one should be seen to be profiting from a matter in which he or she has no interest beyond that of other members of the public.” The Court also commented that when public interest litigants are unsuccessful (not the circumstances of the present case), they should not be “condemned to pay costs, that too would be unfair. One individual would have to pay costs in a matter that he or she has no interest beyond that of the other members of the public. This would create a chilling effect and stifle the enforcement of rights and the growth of constitutionalism.”
If a court exercises its discretion to award costs, the Constitutional Court advised: “[T]he actual amounts taxed and allowed should be nominal in respect of professional fees, the rest should simply be awarded only in respect of disbursements.”