Property rights must be used in public interest

Recent events relating to demolition of land on riparian land have sparked off debate on land rights, the promise of the Constitution and the refuge for a citizen when those rights are threatened. This question arises when one watches media reports of citizens who state that they purchased such property after conducting due diligence that confirmed that the property was not subject to any legal disputes nor was it on environmental sensitive land.

Every citizen purchasing property is expected to seek approvals from relevant government authorities and conduct a search at the Land office to determine the legality and propriety of he land before they can proceed to purchase. In instances when these are all done and it later turns out that something was wrong in the results that the process revealed, who shoulder the blame?

In the arguments about this issue, the debate gets to the concept of property rights. There are those who hold the view that property rights are absolute. Once you acquire them you should do with them as you please as long as the method of acquisition was legal.

However, that cannot be the guarantee in the Constitution or in modern property law. In the 19th Century, William Blackstone wrote that property rights are absolute and exclusive. During that period having property rights gave one the unfettered rights to do with the property as they pleased. However, modern developments have meant that this approach to property gives way.

The current laws and policies recognize that when one has rights to property, the society must respect those rights. They cannot interfere with them at whim as doing so will jeopardize the entire fulcrum on which a democratic society is built.

However, such rights are not absolute. It is recognised that the rights can be regulated. For example, when the government promises to construct a road or any other public infrastructure, they may have to take away land and other property on land so as to create way for the construction. In such instances, the rights of the individual to their property and the enjoyment of such rights will be curtailed in the interest of the public.

Balancing public rights and those of the private individual is at the heart of sound framework for regulating property rights. The Constitution states that the state can compulsory acquire our land in the public interest. In those cases, they are under a duty to compensate those whose land they have acquired.

Many disputes have come to the public arena with citizens complaining abut the manner of the acquisition, the notice period or even the adequacy of compensation. Courts invariably resolve such contestations and ensure that both private rights and public rights are protected in the process of development. The recent demolitions, however, do not deal with the question of compulsory acquisition. They are about the state regulating the use to which we put our land.

The argument is that certain parts of the land are reserved for public use and should not be put to private use. Many reasons account for thus but the one that has been raised in most discussions is what an American scholar once called the ecological conception of property.

The scholar, David Hunter, argued that in enjoying our rights to property we must respect ecological integrity, ensure that such utilization does not result to environmental damage. Consequently, for certain aspects of property that are ecologically sensitive, we have to preserve their quality.

Some of these properties may be reserved for public purposes. This is the rule behind protection of riparian reserves. You cannot privatise riparian reserve, since by their very nature and the function they perform they should always be available for public use.

One cannot consequently purchase riparian land. If you are sold such land you will be falling prey of the Constitution which recognises the Public Trust Doctrine and the need to protect public property for public use. Riparian reserves are public property.

Secondly, it is explicit in Article 40 of the Constitution that the protection of property rights and compensation in cases where such rights are acquired from a private individual by the state does not extend to cases of irregular or illegal allocation of land.