ABSTRACT
This paper discusses the concept of the powers of the eminent domain in
the Zambian legal system. This concept relates to the powers of the State to
compulsorily acquire land in Zambia from a lessee (a person with an interest in
Zambia) with or without compensation, depending on the circumstances of each
case. It also discusses the constitutional and statutory framework for the
powers of the State and the process which needs to be fulfilled before the
State can successfully acquire land. This paper also illustrates the practical
application of the concept in the Zambian legal system with the aid of judicial
precedents.
Key word or phrases – Eminent Domain, Compulsory acquisition,
Adequate Compensation
INTRODUCTION
Compulsory
acquisition is an aspect of the state’s power of eminent domain, that
is, the power, usually deemed inherent in sovereign states, to take private
property for public use, subject to making reasonable compensation, as distinct
from mere seizure.[1]
Eminent domain refers to the government's power to take private property for
public use, provided fair compensation is given to the owner. In Zambia,
this power is typically exercised for projects like infrastructure development,
public utilities, or other purposes deemed to benefit the public.
THE LEGAL
FRAMEWORK FOR COMPULSORY ACQUISITION OF LAND
Article 16 of
the Zambian Constitution[2]
provides - Except as provided in this Article, no property of any
description shall be compulsorily taken possession of, and no interest in
or right over property of any description shall be compulsorily acquired, unless
by or under the authority of an Act of Parliament which provides for payment of
adequate compensation for the property or interest or right to be taken
possession of or acquired. An Act of Parliament such as is referred to in
clause (1) shall provide that in default of agreement, the amount of
compensation shall be determined by a court of competent jurisdiction.
(emphasis mine)
There are a
number of Acts of Parliament that vests authority in the State to compulsorily
acquire land or an interest in land as follows:
a)
Section 3 of the Land Acquisition Act[3]
- Subject to the provisions of this Act, the President may, whenever he is
of the opinion that it is desirable or expedient in the interests of the
Republic so to do, compulsorily acquire any property of any description.
Notwithstanding anything contained in this Act or any other law, but subject to
subsection (2), no compensation shall be payable in respect of undeveloped
land or unutilised land.
b)
Section 22 of the Electricity Act[4]
- The President may, in accordance with the Lands Acquisition Act, compulsorily
acquire land that the President may consider necessary for purposes of,
or associated with, the generation, transmission, distribution or supply of
electricity by a licensee.
c)
Section 7 of the Zambia Tanzania pipeline Act[5]
- The President may by order published in the Gazette acquire by compulsion
in his name private land for use by the Company.
d)
Section 60 of the Tanzania – Zambia Railway Act[6]
- Where any piece or parcel of land is required for the purposes of the
Authority and the Authority is unable to acquire such land by agreement, the
Authority may make representations to the Government and the Government may, if
it considers it proper so to do, acquire such land in accordance with the
provisions of the law relating to the acquisition of land and allocate the land
to the Authority.
e)
Section 68(2) of the Urban and Regional Planning Act[7]
- When an integrated development plan or a local area plan takes away an
existing right to use the land as confirmed in a legal instrument, the owner
shall be entitled to compensation.
PROCESS
FOR LAND ACQUISITION
The Land
Acquisition Act provides for the following process:
a)
Preliminary investigation;
b)
Notice of intention to acquire property;
c)
Service of the notice of intention to acquire property;
d)
Payment of Adequate Compensation;
e)
Notice to yield up the property; and
f)
Possession of land.
JUDICIAL
PRECEDENTS
The High Court
has jurisdiction to hear disputes relating to land acquisition. Annexed to this
document are court judgments for discussion as follows:
a)
Jonathan Van Blerk vs The Attorney General and
Others[8]
- In the present case, the land was acquired by the State pursuant to the
Lands Act Chapter 184, as read with Statutory Instrument No. 7 of 1964 and Gazette
Notice No. 1345. There was no evidence that at the time of trial, fraud was
involved and that the intentions of the President were that the acquired land
should not be used for public purpose but to allocate the same to private
entities for their businesses. The court stated that it was imperative for them
to look at the definitions of "public purpose" and "fraud"
or "fraudulent misrepresentation." According to section 4(2) of the
Lands Acquisition Act, public purpose includes: "(a)For the exclusive
use of the Government or the general benefit of the people of Zambia.
(Emphasis mine)
b)
William David Cerlisle
Wise vs Attorney-General[9] - It was held that the notices of intention to acquire
property and to yield up possession were irregular and unlawful and therefore
nullified. It was further held that the compulsory acquisition of the
said two farms was null and void ab initio. The Plaintiff was and continues
to be the owner of the said two farms. The Plaintiff was awarded damages to
be assessed by the learned Deputy Registrar.
CONCLUSION AND RECOMMENDATION
This paper has discussed the concept of the powers of the eminent domain
in the Zambian legal system. This concept relates to the powers of the State to
compulsorily acquire land in Zambia from a lessee (a person with an interest in
Zambia) with or without compensation, depending on the circumstances of each
case. While the concept seems to be plausible, there is need for policy and
legal reforms for this concept. There is need for delicate balance between
utilizing land for public purpose and also protecting the constitutional right
of lessee to enjoy quiet enjoyment of land. There is need for certainty and
protection of the interest of citizens.
BIBLIOGRAPHY
STATUTES
Electricity Act Chapter 189 of the laws of Zambia
Land Acquisition Act Chapter 1 of the laws of Zambia
Tanzania – Zambia Railway Act Chapter 454 of the Laws of Zambia
The Electricity Act No. 11 Of 2019
Urban and Regional Planning Act No. 3 of 2015
Zambia Tanzania pipeline Act Chapter 455 of the Laws of Zambia
(check amendment Act No. 25 of 2009)
CASES
Jonathan Van Blerk vs The Attorney
General and Others
Appeal No. 338/2023 pages J28, J29
William David Cerlisle
Wise vs Attorney-General (1991) S.J. (H.C.)
BOOK
Mudenda on Land law in Zambia: Cases and Materials (UNZA
Press, 2006)
[1]
Mudenda on Land law in Zambia: Cases and Materials (UNZA Press, 2006)
[2]
Land Acquisition Act Chapter 1 of the laws of Zambia
[3]
Electricity Act Chapter 189 of the laws of Zambia
[4]
The Electricity Act No. 11 Of 2019.
[5] Zambia
Tanzania pipeline Act Chapter 455 of the Laws of Zambia (check amendment
Act No. 25 of 2009).
[6] Tanzania
– Zambia Railway Act Chapter 454 of the Laws of Zambia.
[7]
Urban and Regional Planning Act No. 3 of 2015.
[8]
Jonathan Van Blerk vs The Attorney General and Others Appeal No.
338/2023 pages J28, J29,
[9]
William David Cerlisle Wise vs Attorney-General (1991) S.J. (H.C.).
Collins Nkumbwa is a CIP
(NIPA), LLB (UNZA), LLM (UNZA), AHCZ, ASCZ, PhD Candidate
Lecturer
of law and Commissioner for Oaths.