State’s duty to provide protection for the evicted
Publish date: 12 February 2019
Issue Number: 141
Diary: A Matter of Justice
Category: A Matter of Justice
Hard to imagine in a country with a strong Constitution that goes back almost 25 years, but Uganda has no legal provisions for the protection of some of its most vulnerable people: those who are evicted from private or public land.
For local attorney and human rights activist James Muhindo the injustices caused by this oversight became just too much and he asked the High Court to intervene. In particular, he wanted the court to declare that the absence of adequate legal process to govern evictions violated the right to life, the right to dignity and the right to property under Uganda’s Constitution.
Muhindo said it was unjustified for the government not to have put in place clear constitutionally consistent procedures to regulate the eviction and resettlement of people affected by ‘development projects’, and that this failure also infringed international human rights instruments that Uganda had signed. His application was brought together with several individuals who had been evicted and affected by the lack of appropriate legislation. The essence of their affidavits, noted the court, was that ‘there are gross violations of rights in Uganda arising from forceful evictions … from both public and private land’.
One co-applicant, Ali Kiberu, bought land in 2009 and built a house on it. Uganda Railways wanted the land for development and surveyed the property. He has been waiting for compensation. In 2014, an eviction notice was published and sometime later his home and those of similarly affected people were forcibly demolished. ‘People were not allowed time to save their property and the little they saved was stolen. There was indiscriminate use of tear gas which led to loss of some lives.’
Those affected successfully petitioned the court for interim orders, but these were disregarded. No date has yet been fixed to hear their case. Meanwhile, he has suffered considerable loss, the rights of his dependents have been violated and the families of those affected have been ‘scattered’. A school was demolished and so the children of that community have been denied education.
Another co-applicant, Charles Topoth, explained that an exploration company obtained a licence from the government and started excavations in his area. The company installed high pressure pumps for mining, causing massive river drainage. The local people lost their livelihood and other employment. Though mining was stopped some years later the area was still guarded by the army. His whole family was evicted, without being given a chance to plan for what would happen to them and the family has been displaced. No one has been compensated for their losses.
Expert witnesses said that though there were occasions when evictions would be justified, they should be carried out lawfully and in a way that was compatible with all laws and covenants to which Uganda was a party. Ugandan law should provide for how evictions should be carried out so that evicted people did not become ‘refugees in their own country’. The experts also outlined the approach to be followed by drawing extensively on United Nations principles for development-based evictions and displacement.
In its response the government did not satisfactorily deal with the concerns raised by Muhindo, said Judge Musa Ssekaana, who heard the matter. ‘Either (the government) did not understand the … complaint or they never had any meaningful answer to give and that is why they avoided giving the specific response.’
The court’s judgment drew from decisions of the courts in Uganda, Nigeria, Kenya and SA, among others, as well as international law and other UN documents. Ssekaana said the government was aware of the need to protect and regulate ‘rampant evictions’ in Uganda, and there had even been a notice by the Minister of Lands not to allow any evictions over the 2018 December festive season.
The judiciary itself had tried to respond to continued forced evictions by issuing a practice directive in 2007 with guidelines for such situations. ‘Evictions normally result in severe human rights violations,’ Ssekaana wrote, ‘particularly when they are accompanied by use of force. The victims of the forced evictions are put in life and health threatening situations and often lose access to food, education, healthcare and other livelihood opportunities.’
It was the duty of the state to ‘bridge the gap between the “have” and the “have nots”,’ he said. The government’s duty was not only to protect property but also to ensure that the social and economic rights of the people were given meaning. The state had to prevent third parties from interfering with the human rights of those being evicted, and this included laws to ensure that landlords, property developers, landowners and others acted in a way that respected the human rights of others.
‘In my view, where the state allows people to occupy land, be it government or private, for a considerable period of time so that the people consider the land to be their homes, it would be inhuman for the state or the private developer to suddenly evict them forcefully’ without giving them a chance to find decent alternative shelter.
Everyone threatened with forced evictions also had the right to a fair hearing and evictions would then have to be suspended while a case was resolved. Often, however, ‘houses are destroyed without a court order or without giving evictees enough time to appeal against the decision to evict’. On the other hand, ‘land-grabbing’ had to be ‘discouraged by clear sanctions’ to avoid lawlessness in Uganda.
In the end, the court declared that the absence of legal procedures governing evictions could lead to the violation of constitutional rights. The judge also agreed to issue an order ‘compelling the government to develop comprehensive guidelines’ on land evictions and to report back on progress within seven months. The process leading to the guidelines should be consultative and participatory and should refer to the relevant UN documents, he said.