Court orders that a bylaw should be enacted before a decision to declare any property is declared as a heritage site.
On 7th July 2023, the High Court of Uganda sitting at Kampala, among many other orders, ordered that Uganda`s capital city governing authority, KCCA, together with the concerned stakeholders, should follow the legal regime in place to make or arrive at decisions especially a one to do with how land is used or developed in the East African country`s capital Kampala.
The decision written and delivered by Dr Douglas Singinza, Acting Judge of the High Court of Uganda vide Judicial Review, Miscellaneous Cause No. 207 Of 2022; Watoto Church Ministries and Anor V Kampala Capital City Authority and Another is clothed with rich with jurisprudence in regards to time constraints, amenability to judicial review, judicial review, local remedies, procedural matters and heritage sites.
The background of the case is very interesting and broad but briefly is that around 2011, Watoto church ministries, together with its development partners and planners, presented the intended mixed-use redevelopment plan to KCCA for approval and without giving valid reasons, the KCCA together with the National Physical Planning Board; NPPB—rejected the application.
From the evidence and arguments presented in court, it was shown that a lot of time was consumed in efforts to internally find a solution between all concerned parties and the High Court was approached as the last option to remedy the situation.
In its lengthy ruling, the High Court of Uganda highlighted the weaknesses in the law governing the listing and declarations of properties as cultural and heritage sites in Uganda, the exceptions to the extension of time to bring judicial review applications, what applications must satisfy to be amenable to judicial review, the purpose of various writs of judicial review among others.
A cursory reading of the ruling, the following are discernible with much ease;
a) The delay in bringing an application for judicial review can be rationalized by the inordinate delays by a decision-making body mistaking the scope of its powers; in this case the delay in bringing the application for review arose in part from the NPPB’s incorrect assumption that it was the final internal appeal mechanism within the KCCA, when in fact this should have been the MPPA.
b) Whereas the law requires any person before resorting to litigation, local remedies should always be exhausted unless the case circumstances fall within the exceptions; in this case, the exception of unfairness and irrationality came to the rescue of the applicants.
c) There are no internal mechanisms within the NPPA and KCCA to manage such disputes without recourse to court effectively—this necessitates recommending that such be cured appropriately.
d) The judicial remedies are discretional and awarded accordingly.
e) The bylaw or statutory instrument must be enacted before a decision to declare by listing a property in Kampala as a heritage site is made.
f) The old law vide Museums and Monuments Act 1968 no longer reflects the ever-changing legal in this century; indeed, the Museums and Monuments Bill 2022 seeks to cure this.
The court made the following orders;
a) The decision to reject the mixed-use plans of the Watoto church and Kampala Playhouse by the KCAA and the NPPB is reviewed and set aside on account that the decision was procedurally illegal and improper.
b) A writ of mandamus is issued against the respondents to reconsider the Watoto Church mixed-use development plans application three months from the ruling date.
c) In complying with paragraph 2 of this order, the respondents can consider the existing KCCA physical development planning regulations and guidelines.
d) In future, should the KCCA wish to declare any property within its geographical limits a national heritage, a bylaw should first be enacted to give it effect.
e) The role of the NPPA, in the planning and controlling of land use in the KCCA should be minimized, given the provision of the MPPA, which is self-executing.
f) The KCCA should, within three years, enact a bylaw listing all the properties within the capital city that should be protected as national heritage sites.
g) Where necessary, the properties to be listed should be compulsorily acquired, and the owners compensated first as required under the law.
The Author, Simon Nyakoojo, is a Senior Legal Writer and Founding Partner at the Judicial Sound Exponent. If you think we can improve this article or have any queries, please email us via [email protected]
