The Principle of Free Prior And Informed Consent (FPIC): A Way To Inclusive Development

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By Gloria Acayo

As the government embarks on the legal reforms in the Land Sector, it is imperative to be conscious and critical on the principle of Free, Prior and Informed Consent especially during compulsory land acquisition. The ministry of Lands, Housing and Urban Development is undertaking on reforms of land laws and enacting new policies to protect the land rights of the people. Among the laws under review is the Land Acquisition Act 1965 which is now Land Acquisition (Amendment) Bill 2018 (LAB) and a draft Land Acquisition Resettlement and Rehabilitation Policy (LARRP). One would wonder why all these amendments and new enactments?

We should be informed that all this time Uganda has been using the Land Acquisition Act that was enacted in 1965. The reform came in after an attempt by government in 2017 to amend Article 26 of the 1995 constitution of Uganda to grant government of Uganda rights to compulsorily acquire land even when the compensation amount is disputed. The amendments however have dealt away with this issue and the government will only be allowed to continue to acquire land if the dispute is not in regard to the compensation rate. In this regard the money shall be deposited in the court.

The proposed reforms legislation will provide a framework for addressing the key issues relating to land acquisition and support the Government in acquiring land for development purposes without depriving communities of their right to prompt, fair and adequate compensation prior to taking away of land by the state as enshrined in Article 26. Article 26 of the constitution bars compulsory deprivation of right to or interest in property except where the taking of possession or acquisition is necessary for public use or in the interest of defense, public safety, public order, public morality or public health and upon prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property.

However, the Constitution is not clear on what constitutes public use and public interest, this leaves Government with a margin of discretion in determining “public use” and “public interest” and the broad definition of conditions permitting compulsory acquisition implies a risk that all large projects are deemed to be in the public interest with involuntary resettlement being the norm. As a result, we have seen land being removed from public use to private use, a good example is the giveaway of prime 15.1-acre land of Shimoni Demonstration Primary School and the teachers’ college, worth Ug. Shs.15b to a Saudi Arabian investor named Prince Aliwaleed Bin Talal trading under Kingdom Hotel Investments to construct a multi-billion hotel in preparation for the 2007 Commonwealth summit. The other examples are the Kololo school land saga of 2009 and Kitante school land saga 2011.

The attempt to define what amounts to public interest, use and purpose in the two proposed legislations is a positive move on the side of the government. In the proposed legislations what amounts to public interest, use and purpose includes; transportation uses including roads, canals, highways, bridges, wharves and airports, public building including schools, libraries, hospitals, factories, religious institutions, public housing, Public utilities for water, sewage, electricity, gas, communication, irrigation and drainage, and reservoirs and finally public parks, play grounds, gardens, sports facilities and cemeteries and national defense.
The new reforms if adopted will give an opportunity to the legitimate land owners to contest acquisitions especially where the land is acquired for a contrary purpose other than that provided for under the law.

It is key to note that if government invokes Article 26 (2), the legitimate land owners cannot contest compulsory land acquisitions. However, much as the communities may not have the powers to stay government from compulsorily acquiring their land, they do have the right to know the government’s intentions of taking their land and the impact of the intended development project on their environment, livelihood, social harmony and stability. These rights are enshrined under the national objectives X, where the constitution provides that the state shall take all necessary steps to involve the people in the formulation and implementation of development plans and programmes which affect them. Further, Article 41 provides for the right to access information. Together, these provisions guarantee what we know as the right to Free Prior and Informed Consent (FPIC).

Free Prior and Informed Consent (FPIC) is a principle governed by international instruments especially the International Labour Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Article 10 of the UNDRIP is to the effect that Indigenous peoples shall not be forcibly removed from their lands or territories. Similarly, the declaration notes that no relocation shall take place without the free prior and informed consent of the indigenous peoples concerned and after agreement on just fair compensation and, where possible, with the option of return. Much as Uganda has not ratified to the two conventions, it is in the spirit of inclusive development, and good practice that the principle should be promoted in Uganda context during land acquisition.

Uganda is one of the states that ratified the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests (VGGTs). These principles promote good governance of land, fisheries and forests. The VGGTs principle 1 and 2 calls for recognizing, respecting and safeguarding all legitimate tenure right holders and their rights whether formally recorded or not. The VGGTs give responsibility to the government to take reasonable measures to identify, record and respect legitimate tenure right holders and protect them against the arbitrary loss of their tenure rights, including forced evictions that are inconsistent with their existing obligations under national and international law.

Reflecting on Uganda’s experience of land acquisition by the government for development projects including that in the Albertine regions, the consultation process has not been so participatory as affected community mostly are not given adequate information to enable them make informed decision. Several brutal evictions have been reported in the media to have taken place without communities’ consent to the land acquisition or knowledge of the project, or even compensation for some communities and there are instances where the community are informed of the acquisition but have not been given opportunity to understand and appreciate the nature and impact of the project on their livelihood.

In Kabarole a community were stopped from utilizing some of the Crater lakes that they survived on for decades after the District Local Government leased the lakes to a private company for Fish restocking without consulting the user community, the situation in Mubende with the Kaweeri Coffee Company is not any different whereby communities were evicted without their consent or knowledge of development of the project and the case is pending in court up to date, the community of Kyangwali suffered inhumane treatment since 2014 to January 2019 when the President gave a directive to halt their evictions as their land was under threat of being taken with the intention of providing land for refugee settlements against their consent , communities of Amuru in Lakang village in 2006 faced threats of their land being given to Madhivani for sugarcane plantation against their consent.

The negative effects of these actions has had an insurmountable consequence to the lives and livelihoods of the affected communities and has caused food insecurity. It is worth saying that the clashes between government and community during compulsory land acquisition are because of the inadequate participatory consultation processes that is carried out the government.

The Ministry of Lands, Housing and Urban Development is developing guidelines on Free Prior and Informed Consent to enable community meaningful participation during the land acquisition processes in Uganda. This will give communities an entry point to meaningfully engage with government on the development programmes that will affect their livelihoods.

As the process of compulsory land acquisition is on going in the country, we urge all stake h should be engaging, inclusive and participatory on the side of the government, development partners and the Communities. Communities should be given prior information to enable them make informed decision. This will make development in Uganda more inclusive and equitable.