Eminent Domain and Protected Areas: Experiences from East Africa

1. Eminent Domain and Protected Areas:Experiences from East Africa Peter Veit World Resources Institute

2. What is Eminent Domain? • Power of state to appropriate private property in a compulsory manner and convert into public land; the only method of extinguishing private land rights • Often only for public use, but interpretation and practice vary. Public good overrides the property rights of a few • Preexisting power (attribute of sovereignty), but often codified in constitution and enabling legislation • Authority often rests with the president; but can be delegated; clear procedures for exercising eminent domain

3. Land Domains Private Public Reserve Individual Nat. Park Users and Usages Community Airport Corporation Road Other Private Users Other Public Uses

6. Legal and Legitimate • Legally Vulnerable. PAs established by extralegal means are illegal. Courts have ruled them “null, void, and unconstitutional,” but reoccupation usually not ordered • Politically Unsustainable. PAs established by undemocratic procedures are illegitimate. Such PAs are not sustainable; resentment lead to conflicts. • Economic Insecurity. Inappropriate use of ED creates insecurity in property, limits investments, and threatens local livelihoods.

7. Key Eminent Domain Questions • What can ED be used for? • What are the procedures for exercising ED? • How are affected people compensated?

8. Eminent Domain Use • UGANDA. “…the taking of possession or acquisition is necessary for public use.” • KENYA. “…in the interest of defense, public safety, public order, public morality, public health, town and country planning or the development or utilization of any property in such manner as to promote the public benefit.”

9. Eminent Domain Use cont. - TANZANIA • Exclusive government use; for general public use and of public interest • Government schemes; development of agricultural land; for industrial, agricultural, commercial development; social services or housing • Sanitary improvements, including reclamations • New or extension city, municipality, township or settlement • Public utility, airfield, port or harbor • Mining for minerals or oil • For use by East Africa Community or a corporation within the Community • Use by a person or group of persons who, in the opinion of the President, should be granted such land for agricultural development

10. Steps to Acquire Private Land (Kenya) • Lands Ministerial directive issued to Lands Commissioner • LC publishes notice with justification in Gazette • LC inquiry to determine legitimate claims • Govt assesses property, awards compensation • Govt assumes ownership of the land (public domain)

11. Steps to Place Public Land in PA (Kenya) • Wildlife Minister obtains the consent of the Minister for Lands • An EIA is undertaken and requirements fulfilled (EIA regs require assessment, participation, recent law) • Wildlife Minister places the land under protected area mngt

12. Land Acquisition Process (Zimbabwe) • The President or any authorized Minister consults with the Rural District Council • President publishes a declaration • 30-day period to contest the acquisition and lodge a written objection • Claims for compensation (except agricultural land for resettlement purposes) • Minister by statutory instrument amends the instruments

13. Procedural Issues • Govt process, no parliamentary action required • Power concentrated in a few individuals • Justification involves invoking established purpose • No citizen participation (except thru EIA) or thru representatives; no oversight, accountability • Cumbersome recourse procedures for citizens; little justice in lower courts

14. Compensation • People should be as well off or better after the taking. • Land is government owned or public land held in trust. Little freehold/private property; no land market. • Fair – often only the value of structural improvements/standing crops; government assesses property, not market value. • Prompt – more often must be paid before the taking; Ugandan govt wants to exercise ED without first paying compensation

15. Immediate Steps • Protect citizens (FPIC, referendums, other ballet-box initiatives) • Promote accountability – parliament oversight, environmental courts, NGO monitoring • Broaden compensation - fair market value; provide alternative land • Degazette PAs that are illegal or do not serve a genuine public purpose; order reoccupation • Downlist PAs (parks to reserves) when room for multiple use • PAs as last resort, not first response; CBNRM can be effective; environmental easements/liens are proven measures

16. Democratizing Eminent Domain • Legal contradictions. Uganda LA Act , 1995 constitution • Limit the uses of eminent domain to genuine public purposes (not econ development, not ordinary govt business) • Set higher justification standards (for each proposed PAs) • Make illegal the use of presidential decrees to establish PAs • Mandate participate, public hearings, impact assessments • Similar procedures for extinguishing user rights to natural resources (reserves to parks, marine reserves)