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Land Reform and Customary Rights: The Case of Uganda

Published online by Cambridge University Press:  28 July 2009

Abstract

This article examines the Ugandan Land Act, 1998, which seeks to transform land relations throughout the country both by settling once and for all the vexed question as to the relative rights of “owners” and “tenants” of mailo land, and by providing procedures whereby persons may apply either for certificates of customary ownership or for freehold titles to their land. While the Act recognizes that in some areas it may be more appropriate for land to be held communally, it is the long-term aim that most land should be held on individual freehold title. However, the negotiability of such a title is undermined by a variety of provisions designed to protect customary rights.


Type
Research Article
Copyright
Copyright © School of Oriental and African Studies 2000

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References

1 Patrick McAuslan has argued forcefully in favour of “more” rather than “less” law in the context of land law reform in Tanzania. See McAuslan, Patrick, “Making law work: restructuring land relations in Africa” (1998) 29 Development and Change 525 at 534ff.Google Scholar The Land Act of Tanzania, which he was in large part responsible, runs to 186 sections. He applied the same principles in assisting with the drafting of the Ugandan Act; the original Bill was much shorter.

2 Apart from the controversial “reforms” introduced by the Decree (promulgated during Amin's regime), the fact that it was poorly drafted and incompletely implemented has led to considerable uncertainty in land matters, an uncertainty which has been compounded by the chaotic state of the land registry system.

3 Given the emphasis on furthering social justice in land matters contained in Directive IX (iii) of the Constitution, this was hardly surprising.

4 S. 4.

5 S. 30(1).

6 S. 30(2). A person who had been in adverse possession for less than twelve years is required by s. 31(1) to negotiate with the owner concerning his occupation of the land. However, it is not clear what is to happen if they fail to reach agreement on what is to prevent the owner from evicting the squatter.

7 S. 2 and 32(2).

8 S. 32(1).

9 S. 34(1).

10 S. 32(3).

11 S. 35. The section sets out the consent procedures including a provision for appeal to the Land Tribunal.

12 S. 36. A Mediator may assist the parties in reaching an agreement.

13 S. 38(1) and (2). It is far from clear what “unattended” means. No other titles are conditional on attendance. The position is further obscured by the provision that section 38(1) is subject to section 28, itself a problematic section (discussed below) seemingly designed to prevent women or children or persons with disability being denied access to land.

14 Customary Leaseholds (Enfranchisement) Act, 1968. The enfranchisement process was beset with difficulties. The Ugandan Land Act s. 29 does provide for the enfranchisement of leases of public land; however, enfranchisement is not automatic, as it was under the original Bill, nor, where the area of land exceeds 100 hectares, is it free.

13 S. 39. Tenants of freehold or leasehold land have equivalent rights.

16 S. 3(1) and (2). Some of those who were granted large tracts of land under the Decree were less interested in developing the land than in using the land as security for loans to be used for other purposes.

17 MISR/University of Wisconsin, Land Tenure and Agricultural Development, University of Wisconsin Land Tenure Center, Madison, 1990. The Study was funded by the World Bank and USAID.Google Scholar

18 S. 65. The Committee consists of a Chairperson and throe other members appointed by the District Council. At least one member must be a woman and at least one must be experienced in land matters.

19 S. 6.

20 S. 7.

21 S. 8.

22 S. 8(6).

23 S. 88.

24 Interestingly, in Tanzania there has recently been some debate about the recommendation of the Presidential Commission of Inquiry into Land Matters to give certain responsibilities to a panel of elders (Baraza la Wazee la Ardhi). See McAuslan, P., op. cit., at 548.Google Scholar

25 See, for example, S. Coldham, The effect of registration of title upon customary land rights in Kenya. [1978] J.A.L. 91 and Mackenzie, F., “Gender and land rights in Muranga District, Kenya”, (1990) Journal of Peasant Studies, 17(4), 609.CrossRefGoogle Scholar

26 S. 6(1)(c).

27 S. 6(1)(g). The original Bill did not set out the functions of the Committee in this detail. It made no mention of third-party rights and it did not contain the equivalent of section 6(1)(g). Neither the Bill nor the Act require the matrimonial home to be registered in the joint names of the spouses, as had been demanded by women's groups.

28 S. 8(3).

29 S. 9(1),(2).

30 S. 69.

31 S. 9(4).

32 S. 10. Section 11 allows any person to apply to be granted land in freehold. The procedure is the same.

33 S. 13 and 14. The procedure is simplified where the applicant already possesses a certificate of customary ownership of the land. However, whereas an applicant for such a certificate need only show that s/he has exercised rights over the land which “should be recognised as ownership of that land” (s. 6(1)(d)), in an application for freehold title the Committee must consider whether the applicable customary law “recognises or provides for individual ownership of land” (s. 12(2)). The difference in wording is presumably intended to be significant, though the significance may well be ignored by the Land Committees.

34 S. 14(4) and (6)(b), 15(3).

35 S. 16. The original Bill contained a single section providing for communal land-holding; it said nothing about Communal Land Associations.

36 S. 17.

37 S. 18.

38 S. 19.

39 S. 20.

40 S. 24(1). The ingredients of such schemes as well as the duties and rights of members in relation to such schemes are set out in some detail in the Act. The most common type of scheme is likely to be for the grazing and watering of livestock and such a scheme would be expected to contain restrictions designed to maintain or increase the carrying capacity of the land. Similar schemes to preserve the rangelands of Tanzania (under the Range Development and Management Act) and of Kenya {under the Land (Group Representatives) Act) were not very successful.

41 S. 23.

42 S. 47 and 50. The Act makes provision for the Commission's membership, its meetings and its powers.

43 S. 57. In addition, section 60(6) requires every District Council to have a District Land Office containing the offices of the Physical Planner, the Land Officer, the Valuer, the Surveyor and the Registrar of Titles.

44 S. 65(1).

45 S. 75.

46 S. 77.

47 S. 89(2).

48 S. 88.

49 See John Bruce and others, “Land and natural resource tenure on the Horn of Africa: synthesis of African trends and issues raised by land tenure country profiles of East Africa countries, 1996”, in Workshop Report on Land Tenure Issues in Natural Resources Management in the Anglophone East Africa with a focus on the IGAD Region, Addis Ababa, 11–15 03, 1996, unpublished.Google Scholar

50 M. Marquardt, “Access to land and other natural resources: Research and Policy Development Project Uganda”, ibid. He argues that registration should be related to the commercialization of agriculture and the need to secure investment.

51 Note, in particular, section 9(4) which provides that no lease, mortgage or sale shall have the effect of passing any interest in the land unless it is registered by the Recorder.

52 See ss. 9(1) and (2), 15(3), mentioned above.

53 The well-known Swynnerton Plan proposed that, “the African farmer … be provided with such security of tenure through an indefeasible title as will encourage him to invest his labour and profits into the development of his farm and as will enable him to offer it as security against financial credits.” Swynnerton, R. J. M., A Plan to Intensify the Development of African Agriculture in Kenya, 1954, s. 13.Google Scholar

54 As mentioned above, the government of Uganda embraced the freehold option in the 1995 Constitution. So the question hardly arose in the debates on the Land Bill. It has been argued, however, that Ugandan farmers do not need freehold titles as long as they have security of tenure. See Nyangabyaki Bazaara, “Land reforms and agrarian structure in Uganda; retrospect and prospect”, (1995) 34/35. Nomadic Peoples 37. It has also been argued that government attempts (e.g. in Kenya and Tanzania) to intervene in indigenous land tenure arrangements are generally misguided. “Governments can best devote their resources to other uses, while standing ready to intervene to the minimum extent possible … where some tenure reform is required.” Pinckney, T. C. and Kimuyu, P. K., “Land tenure reform in Africa: good, bad or unimportant?”, (1994) 3(1) Journal of African Economies 1 at 26CrossRefGoogle Scholar

55 M. Marquardt, op. cit. At the same workshop Professor Nsibambi also argued in favour of an open land market. A. R. Nsibambi, “Land tenure relations in Uganda 1900–1995”, ibid.

56 Ambreena Manji also argues that women are likely to benefit from individual titling. “In Tanzania individualisation, registration and titling on the Kenyan model is more likely to be the means by which the State provides women with land rights.” Ambreena, Manji, “Gender and the politics of the land reform process in Tanzania”, (1998) 36(4) Journal of Modern African Studies 645 at 666. Government policy in Tanzania has, of course, been based on the premise that marketability of land increases insecurity of tenure.Google Scholar

57 Contrast policies adopted elsewhere in sub-Saharan Africa, e.g. in Tanzania where development conditions are attached to granted rights of occupancy and in Zambia where they are attached to the grant of government leaseholds. The Land Act is not concerned with land use except in relation to common land.

58 A word like “action” might be better than “decision”, though “decision” is apt to include determination of the Land Committee, Land Board or Land Tribunal. The expression “access to” is unclear. The location of the section in the statute, wedged between a series of sections dealing with Communal Land Associations and a long section dealing with the conversion of leaseholds, odd. In the original Land Bill the fore-runner of this section gave no protection to persons with disability and it omitted the reference to unconstitutional conditions.

59 For example, article 34(7) (“The law shall accord special protection to orphans and other vulnerable children”) and article 35(1) (“Persons with disabilities have a right to respect and human dignity and the State and society shall take appropriate measures to ensure that they realise their true potential”).

60 However, there is some evidenee that land eontrol boards have been concerned to consult the owner's family where the effect of the transaction would be to leave them with insufficient or no land. See Coldham, S. F. R., “Land control in Kenya”, [1978] F.A.L 63.Google Scholar

61 During the period of British rule only a very small area of land was held on freehold or government leasehold titles, and these were converted to statutory rights of occupancy in the 1960s. When public land was granted, whether to Africans or non-Africans, it was granted on a statutory right of occupancy for a term and subject to conditions. At independence around 98 per cent of land was held according to customary tenure on a customary right of occupancy. The general picture remains the same today.

62 See Part VI generally. The provisions relating to the need to obtain the consent of the Commissioner for Lands for the disposition of a right of occupancy are complex. Of particular interest in the present context is section 41(1)(e) which requires the Commissioner to have regard for the interests of groups at risk such as displaced persons, children and low income persons.

63 Interestingly, the Draft Bill contained a whole Part (60 sections) devoted to the formalization of land tenure on village lands. It proved too controversial, however, and that Part was omitted from the final version.

64 Among the fundamental principles of land policy set out in section 3(1) of the Tanzanian Act are the need both to facilitate the operation of a market in land and to regulate the operation of a market in land so as to ensure that rural and urban small-holders and pastoralists are not disadvantaged.

65 For a discussion of the free market approach versus public law regulatory approach see P. McAuslan, op. cit., at 537ff.

66 One writer has identified corruption as a major source of conflict in land matters in Uganda. See Nsibambi, A., “The land question and conflict”, in Rupesinghe, K. (ed.), Conflict Resolution in Uganda (International Peace Research Institute), Oslo, 1989, at 239.Google Scholar

67 This, as well as the need to ensure enactment by 2 July, 1998, may account for some unsatisfactory drafting, for the “scissors and paste” feel of a few provisions.

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