Private ownership of Uganda natural resources is unconstitutional - Birungi Denis - Whisper Eye

Private ownership of Uganda natural resources is unconstitutional – Birungi Denis

There was a recent story in the media of an alleged ownership of Lake Birinzi in Masaka district by a legislator who has fenced the lake claiming to have a land title on it, and that he acquired the lake in 1998 as it was not gazetted. He claims compensation if government wants to confiscate the lake.

It is unfortunate that an MP, who is expected to understand, and create awareness about the laws of the country, would act contrary to them, by asserting proprietary claims on resources, which the Uganda constitution expressly entrusts to be held by the state in trust for the citizens, a concept known as the public trust doctrine.

The doctrine is firmly embedded in our constitution and subordinate laws. While under article 26, individuals have a right to own property, the right is subject to two important principles of public policy: the public trust doctrine and the eminent domain principle, both complementary principles that make the mission of public goods possible.

The latter refers to the power of government to take private property for public purposes, based on the idea that private interests should give way to public good. The former, to the sovereign holding of public resources in trust for the citizens, both enshrined under article 237 of the constitution.

Regarding the public trust doctrine,  237(2) mandates government, to by law, hold in trust for the people and to protect natural resources, including natural lakes, rivers, and wetlands to “be reserved for ecological use and tourist purposes for the common good of all citizens.” The Land Act gives government this right.

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Therefore, no one can claim ownership of a natural resource. Even the power of government itself is limited while dealing with natural resources.

For instance, it can only licence but not lease or sell. Any purported transfer of ownership either by government or any person is null and void and no compensation can be claimed, because of the principle that an illegality cannot be rewarded and also the idea that public money should not be spent to pay for what was public property in the first place.

As claimed by the legislator, the point of contention has always been whether failure to gazette a natural resource excludes it from the purview of the public trust doctrine. The answer is no. The rationale being that a natural resource is not a needle-like thing that a person cannot recognise it. While there may not be a clear legal definition of certain natural resources, a lake, a wetland or river is something a person should reasonably expect to be public property without the need for gazetting it. The exception perhaps should be a rare situation- where a natural resource forms after a person has acquired ownership. There, compensation is justified.

The principles stated above have been approved by the Supreme Court in constitutional appeal no. 05 of 2011, Godfrey Nyakaana V Attorney General and others. The petitioner suffered huge loss, when his multi-billion house was demolished pursuant to an environmental restoration order by NEMA- a body mandated to enforce environmental laws.

The public must be aware of consequences of encroachment on natural resources, including not only loss of investments but also a requirement to restorethe environment to its prior state at the violator’s own expense, under a principle known as the polluter pays principle.Interestingly, any person has a right under article 50 to institute a suit to protect the environment as a matter of public interest.

Lake Birinzi Which allegedly was bought by Mp Mbabali

The duty imposed on the state is not only to hold and utilize in trust for the citizens, but also to ensure sustainable use for the benefit of the present and future generations and to create awareness.

A core element of the public trust doctrine is the right of local communities to reasonable and sustainable use of a resource situate in their area. An individual cannot therefore deprive local communities of such rights as domestic fishing or water use. Even when licences are given, the licensee utilises subject to the rights of local communities. This protection is crucial given that in most cases, livelihoods of locals entirely depend on the resource.

Birungi Denis is a lawyer, at Uganda Registration Services