Eminent Domain and Protected Areas: Experiences from East Africa

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Eminent Domain and Protected AreasExperiences
from East Africa

• Peter Veit
• World Resources Institute

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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

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

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Key Eminent Domain Questions

• What can ED be used for?
• What are the procedures for exercising ED?
• How are affected people compensated?

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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.

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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

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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)

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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

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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

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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

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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

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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

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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)

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