Table of Contents
Compulsory land acquisition is reflected in the power of the state to acquire compulsorily rights or any interests in any land for public purposes. In other countries, this power is referred to as eminent domain or expropriation (FAO 1). Various States have legal provisions that permit the exercise. They also have pieces of legislation that guide the exercise. The aim of the laws is to allow governments have access to appropriate lands for development purposes such that government projects or plans are not held at ransom just because the land in question is in privately owned. It is also arguable that based on the ethos that governments hold the unequivocal title to all lands within countries, they should therefore have such rights based on the provisions that all land belongs to the States although citizens hold it as tenants. Therefore, the government is entitled to suspend any rights for the sake of the general or public good. From the outset, such exercise reflects a noble practice. Hereunder I present arguments that support re-thinking of the exercise based on the implications to the landowners that are displaced.
Reasons for the discouragement of the exercise
One of the benchmarks of a good land management system is the creation of secure tenure rights on land. This represents the certainty of the conditions of ownership that accrue to the owners of land. With security of tenure rights guaranteed, owners of lands would invest their energies and resources towards the development of the land resource and therefore optimal utilization of land is possible. This would lead to improved welfare of the citizens of a country due to the optimization of the land resource. Compulsory land acquisition is however a practice that reduces or extinguishes the security of land rights. It is abrupt as, the Minister in charge of lands using a gazette notice informs those affected about a government’s intention to acquire any land (Reynodes 12-34). It could be appropriate if the government incorporated pathos in its approach to the land issue. Once the state has identified any land as suitable for an envisaged public use, the owners and any interested parties to the subject lands are compensated for their interests in the lands. After compensations are made, the ownership of the land reverts to the state. Therefore, any citizens holding land have rights to exercise ownership but subject to governmental powers that entail compulsory acquisition based on State powers. This practice should be discouraged as it creates insecure tenure in land rights therefore compromising the owners’ ability to plan and effectively use the land, which they presume to own.
The various legislations that govern compulsory land acquisition provide for prior compensation (Reynodes 1-10). However, in many countries, especially in Africa, compensation is done way behind schedule, as repossession precedes compensation. In many instances, the projects for which the acquisitions are made kick off before the due compensations are made to the displaced persons. This is contrary to what all the legal systems provide for. Therefore, this violates the persons’ rights whose lands are acquired although compensation is delayed. From the principles of the ‘time value of money’, a dollar earned today is worthy much less in one year’s time. The act of delaying to compensate these citizens therefore deprives them of their rightful interests that ought to be compensated. In light of this establishment, governments have no logos to expose their citizens to unnecessary suffering.
Once the notice to acquire a given piece of land is approved, tension mounts amongst residents whose lands have been earmarked for acquisition. In many countries, victims fail to get any reasonable redress since their levels of information is inadequate. Given the long process the acquisition process takes, when such a notice is published, the land owners are unable to use their land, as they are not able to tell when exactly the land are to be taken. After acquisition, some contractors take long periods before commencing the intended projects. This creates confusion and tension as the original land owners are left unawares of the proceedings resulting from the acquisition.
During the early stages of the acquisition, inquiries are held whereby interested parties are invited to make presentations as far as their claims are concerned. Priority is however granted to registered persons as the owners of the land subject to acquisition. Many parties could be interested in the land, for example unregistered leaseholders and dependants. However, in most cases only the registered persons are able to receive compensation. No consideration is made to ensure that the other interested parties benefit from the award of compensation. This leaves a mark of injustice served to genuine interested parties. The persons to whom the compensation is paid may use the money or the award as they wish therefore putting the livelihoods of the other stakeholders at an unfavorable state.
In addition, during the inquiry stage, the claimants are requested to make their presentations of the claims regarding the land subject to acquisition (Nowak and Rotunda 23). When the amount claimed is below that determined by the government, controversies emerge regarding which figures to take. This implies that there is some unfairness in compensation incase a claimant arrives at a lower value for compensation. Assistance should be offered to all the displaced persons so that they are informed on calculating or computing their losses in order to allow justice to prevail. For example some States have a provision for additional fifteen percent compensation of the value of the loss awarded as disturbance costs, but the unfortunate scenario is that, few, if any citizens are aware of such a provision. Therefore, in the computation of the monetary claim for compensation, victims end up losing.
The process of land acquisition is long and inflexible. During the inquiries, the interested parties are required to produce title documents evidencing their interests in the land to be acquired (Nowak and Rotunda 23-45). In many cases especially in the African continent, land was formerly held under communal holding systems. Moreover, many transactions on land require documents like the certificates of the lease and title deeds. This is partially because of the complexity associated with the English land registration systems often adopted by many African states. Therefore, many do not posses documents evidencing the rights claimed. The process of proving the interests without the documents is a hard task to the displaced persons. There are also many unresolved disputes to the ownership of lands further complicating the exercise since determination of the rightful owners is a prerequisite before compensation is done.
Appeal systems, as it regards to the legality of the exercise or the amount of compensation, are quite inflexible. In Africa, appeals are channeled to the Land Acquisition and Compensation Tribunals based in State capitals (Reynodes 12-34). Persons living in upcountry who may be unacquainted with the cities may find difficulties in travelling to present appeals before the tribunals. Costs of lodging the appeals are also discouraging. An appeal system that is convenient and accessible to the local residents could be an appropriate measure for fast determination of disputes regarding amounts awarded for compensation. In case of suits challenging legitimacy of the exercise, they are filed with a high court. Determination of such suits has in the past taken unnecessarily long periods therefore compromising the ability of the landowners to make use and make plans on their land.
The main reason for acquiring land is to enhance development projects such as construction of roads, hospitals, schools, airports or protection of ecologically sensitive areas. Such give governments some logos to acquire land. However, in some instances, the exercise is abused. Incase land is acquired for execution of some project, where the project fails to take off or is considered no longer viable, some officers of the state who have no pathos and respect for the rule of law, have in the past allocated such lands to undeserving individuals in total disregard of the public good of the country. This leads to a feeling of grave injustice by the landowners who were displaced only for the government to allocate such land to other individuals, often the rich and influential in the society.
Land acquisition by governments is done on the logos of promoting developments by the states. Since the appropriate land needed may not be available for sale at the right place, the need for compulsory acquisition surfaces. However, from the above arguments, there seems to be many negatives than positives on the exercise hence the need for the discouragement of the exercise as it fails to account for pathological attributes.