The Constitutional Court has dismissed a petition challenging the gazetting of five villages in Kanungu district as part of Bwindi Impenetrable National Park.
The ruling follows a petition filed 23 years ago in 2002 by lawyer Stephen Turyatunga Ikamukuba. He challenged the Statutory Instrument by the then Minister of Tourism and Industry, Prof. Edward Rugumayo.
The Instrument gazetted the villages of Ahakikoome, Karukara, Kanyeshogi, Kyogo, Murushasha, and Rukungwe within Mpungu Sub-county, Kanungu District, as part of Bwindi Impenetrable National Park, without consultation and compensation.
The Statutory Instrument was issued after parliament agreed to the gazettement. Turyatunga also argued that making these villages part of the park contravened the constitution and was therefore not valid.
The petitioner argued that the gazettement covered about 770 acres. He said this was done without compensating the affected residents. That, he claimed, contravenes Article 26(l) and (2) (a) & (b), which guarantee property rights and prohibit compulsory acquisition without prior fair and adequate compensation.
In response, the Attorney General and the Uganda Wildlife Authority disputed the claims. They said the Kanungu district local government council was consulted before the decision was taken.
The judges agreed with the Attorney General that consulting the local government councils of the affected areas was sufficient, as they act for and on behalf of the affected people.
The panel of judges was comprised of Justices, Esta Nambayo, Irene Mulyagonja, Ketra Kitariisibwa Katunguka, and Jesse Byaruhanga Rugyema unanimously agreed with Musisi’s reasoning.
The court said that the law shows Parliament wants local government groups to be the main way people take part in decisions that affect their communities.
The further stated that where a statute prescribes consultation as a procedural step, it must be treated as a mandatory safeguard; non-compliance may render the resulting action ultra vires.The six judges who heard the petition further stated that Uganda’s governance structure, local government councils, are elected organs representing the people at the district level.
“It would therefore be impractical to expect the Minister to consult each affected individual personally. The doctrine of representative democracy permits consultation through these elected councils and other legitimate stakeholders, provided the process is conducted in good faith and in accordance with the statutory framework,” the court ruled.
In a unanimous decision written by Justice John Mike Musisi, the court, however, held that although the petitioner had a compelling case, it had already been settled by the Supreme Court, which held that the taking of people’s land without adequate compensation was unconstitutional.
“The constitutionality of compulsory acquisition of land without prior compensation has been conclusively settled by this Court and the Supreme Court… Accordingly, while the petitioner raises an important constitutional concern, this issue has already been conclusively determined. Persons affected by the gazettement retain the right to seek compensation, where appropriate, or enforcement before the proper courts under Article 50 or other relevant laws. They will then be required to prove their right to compensation and the quantum, if any, but the constitutional interpretation itself is settled,” the court ruled.
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