The right to development: Why Uganda must close before it can open

Uganda's pursuit of development often mirrors a construction site: a flurry of activity, noise, and dust, yet lacking the foundational 'mabaati' – the robust legal and regulatory frameworks necessary for sustainable growth. This article argues that for Uganda to truly realize the 'right to development,' as enshrined in its Constitution and international instruments, it must first 'close' the gaps in its governance, land acquisition, environmental protection, and human rights enforcement. Without prioritizing comprehensive planning, transparent processes, and equitable benefit-sharing, the current trajectory risks perpetuating unsustainable practices and undermining the very human rights development aims to uphold. Legal professionals play a crucial role in advocating for and navigating these essential foundational reforms.

The vivid imagery of a Ugandan construction site, initially sealed off by corrugated iron sheets (mabaati) to allow for foundational work, offers a compelling metaphor for the nation's broader development trajectory. Just as a building requires a solid, unseen base before its visible structure can rise, Uganda's ambitious development agenda necessitates a robust, albeit less visible, legal and regulatory foundation. The current approach, often characterized by rapid 'opening' without adequate 'closing' – that is, without sufficient foundational legal and institutional strengthening – risks creating structures that are impressive in appearance but vulnerable to collapse. This article posits that for Uganda to genuinely achieve the 'right to development,' it must first prioritize the establishment and rigorous enforcement of comprehensive legal frameworks that ensure sustainability, equity, and human rights protection.

The 'right to development' is a recognized human right, enshrined in international instruments such as Article 22 of the African Charter on Human and Peoples' Rights, to which Uganda is a signatory. Domestically, the Constitution of the Republic of Uganda, 1995, explicitly recognizes this right under Objective IX of the National Objectives and Directive Principles of State Policy, stating that the State shall encourage private initiative and self-reliance to facilitate rapid and equitable development. Furthermore, Objective XI outlines the State's role in development, emphasizing the enactment of legislation to protect and enhance equal opportunities and to regulate land acquisition and use in accordance with the Constitution. Objective XIV further directs developmental efforts towards the maximum social and cultural well-being of the people, ensuring access to essential services and opportunities.

Uganda's legal framework for managing development also includes key statutes such as the Land Act, Cap 227, which governs land tenure, ownership, and management, and the Physical Planning Act, 2010, which establishes national, regional, and local planning committees and mandates the creation of physical development plans. Crucially, the National Environment Act, No. 5 of 2019, repealed and replaced earlier legislation, explicitly recognizing the rights of nature and providing a comprehensive framework for environmental management, including Environmental and Social Impact Assessments (ESIAs) for projects likely to have significant environmental impacts. These legal instruments collectively form the theoretical 'mabaati' intended to guide Uganda's development, ensuring it is orderly, sustainable, and respectful of rights.

Despite a seemingly robust legal and policy framework, the practical realization of the right to development in Uganda faces significant challenges, often stemming from inadequate enforcement and systemic gaps. The metaphor of 'closing before opening' highlights the need for meticulous foundational work. For instance, while the National Environment Act, 2019, mandates ESIAs and even recognizes the rights of nature, actual regulations for enforcing nature's rights remain pending, and the legal capacity of courts to adjudicate such claims is largely untested. This creates a scenario where environmental safeguards, though legislated, may not effectively 'close off' harmful development until fully operationalized and enforced.

Land acquisition for public projects presents another critical area where the 'closing' process is often incomplete. Article 26 of the Constitution guarantees freedom from deprivation of property without prompt payment of fair and adequate compensation prior to taking possession. However, historical practices under the now-unconstitutional Section 7 of the Land Acquisition Act, Cap 226, allowed the government to take possession before compensation, leading to disputes and human rights violations. While the Supreme Court in *Uganda National Roads Authority v. Irumba Asumani & Peter Magelah* affirmed the constitutional requirement for prior compensation, challenges persist, with some communities being displaced without adequate and timely redress. This demonstrates a failure to fully 'close' the legal loopholes that allow for arbitrary land acquisition, undermining the economic and social rights of affected populations.

Furthermore, the Physical Planning Act, 2010, aims to ensure orderly and sustainable development through physical development plans and development permission. However, the effectiveness of these planning mechanisms can be hampered by weak enforcement, corruption, and a lack of meaningful public participation, particularly for marginalized groups. The Investment Code Act, 2019, Uganda's primary legal framework for promoting investment, has been criticized for being silent on critical aspects like climate change, human rights, and environmental safeguards, potentially allowing investments that undermine sustainable development. This 'silence' represents a significant failure to 'close' off avenues for unsustainable practices at the investment approval stage. The government's significant use of supplementary and classified budget accounts also undermines parliamentary and public oversight of public finances, impacting transparency and accountability in development projects.

The broader implication is that without a robust and enforced regulatory perimeter – the 'mabaati' – development in Uganda risks being fragmented, inequitable, and unsustainable. The right to development, as a holistic concept encompassing economic, social, cultural, and political dimensions, cannot be realized if foundational elements like secure land rights, environmental protection, and participatory governance are compromised. The ongoing 'Advancing Respect for Human Rights by Businesses in Uganda' project, supported by the European Union, highlights the persistent issue of human rights violations by businesses, particularly concerning labor rights and natural resource governance, underscoring the need for stronger due diligence and enforcement mechanisms.

For legal practitioners in Uganda, the imperative to 'close before opening' presents both challenges and opportunities. Advising clients on development projects now demands a heightened awareness of the evolving landscape of environmental, social, and governance (ESG) considerations, even as the regulatory framework catches up. Due diligence must extend beyond mere compliance to encompass the spirit of the right to development, ensuring projects are not only legally sound but also socially equitable and environmentally sustainable. This includes rigorous assessment of land acquisition processes, robust engagement with communities, and adherence to international best practices for ESIAs.

Practitioners should closely monitor the development of regulations under the National Environment Act, 2019, particularly those pertaining to the enforcement of nature's rights and the Environmental and Social Impact Assessment Regulations, 2020. Furthermore, engagement with legislative reforms aimed at strengthening land rights and ensuring fair compensation, such as the proposed amendments to Article 26 of the Constitution, remains critical. The ongoing efforts to implement Uganda's National Action Plan on Business and Human Rights also signal a growing emphasis on corporate accountability. Ultimately, achieving true and sustainable development in Uganda requires a collective commitment to building strong, transparent, and accountable legal foundations, ensuring that the 'mabaati' of regulation and rights are firmly in place before the nation fully 'opens' its doors to progress.