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A CRITIQUE OF THE lEGAl REGIME ON lAND REGISTRATION FOCUSING ON
WOMEN AND CHilDREN'S RIGHTS IN UGANDA
BY
A YEBARE ClAIRE
1153-01024-00782
A RESEARCH REPORTSUBMITTED TO THE SCHOOl OF lAW IN
PARTIAl FUlFillMENT OF THE REQUIREMENTS FOR
THE AWARD OFA BACHElOR'S DEGREE IN lAWS
OF KAMPAlA INTERNATIONAl
UNIVERSITY
SEPTEMBER, 2019
Declaration
I do hereby declare that the work presented in this report arises out of my own
research; I certify that it has never been submitted or examined in any university as an
academic requirement for any award.
Sign Date
.... OJ.::. ).9. .~ .~9. J.9. .
A YEBARE CLAIRE
ii
Approval
This research report has been submitted with the approval of MS. AKANTORANA
YVONNE as the university supervisor.
Signed Date of Approval
· · ·~· · ·· · · · ·· ·· (Supervisor)
iii
Dedication
I dedicate my research report to my father who has worked so hard to see me complete this
course, my mother and all my friends who have helped me through. May God bless
them All!
iv
Acknowledgement
First and foremost I would deeply love to acknowledge my beloved parents and sisters
for their overwhelming and grateful help that they have endorsed in me throughout my
curricular activities.
I am deeply indebted to my supervisor for her overwhelming support and supervision in
the compilation of this research.
Lastly but not least, I would love to acknowledge all my former classmates, friends and
everyone who has been of great importance to the conclusion of this research.
v
Table of Contents
Declaration ................................................................................................................................................... ii
Approval ...................................................................................................................................................... iii
Dedication ................................................................................................................................................... iv
Acknowledgement. ...................................................................................................................................... v
Table of Contents ....................................................................................................................................... vi
List of Legislations ..................................................................................................................................... ix
Abstract ........................................................................................................................................................ x
CHAPTER ONE ............................................................................................................................................. 1
1.1 Background ........................................................................................................................................... 1
1.2 Statement of the problem ................................................................................................................... 3
1.3 General Research Objective ............................................................................................................... 4
1.4 Specific Research Objectives .............................................................................................................. 4
1.5 Research questions .............................................................................................................................. 5
1. 6 Scope of the study ............................................................................................................................... 5
1.7 Significance of the study ..................................................................................................................... 5
1.8 Methodology ......................................................................................................................................... 6
1.9 Literature Review ................................................................................................................................. 7
1.10 Chapterization .................................................................................................................................. 15
CHAPTER TW0 .......................................................................................................................................... 16
CONCEPT AND UNDERSTANDING OF LAND TENURES ...................................................................... 16
2.0 Introduction ........................................................................................................................................ 16
2.1 Land tenure, land use and management as well as Land Registration ....................................... 16
2.1.1 International perspective ............................................................................................................... 16
2.1.2 Regional Perspective ...................................................................................................................... 18
vi
2.1.3 Ugandan perspective ...................................................................................................................... 19
2.2 Legal and institutional framework on land registration, women and children's rights ............. 21
2.3 Human rights meanings and concepts related to land management ........................................ 26
CHAPTER THREE ....................................................................................................................................... 32
THE LAWS, POLICIES AND INSTITUTIONAL FRAMEWORK ON LAND AND HUMAN RIGHTS IN
UGANDA ..................................................................................................................................................... 32
3.0 Introduction ........................................................................................................................................ 32
3.1 Titling and Registration under Ugandan Law ................................................................................ 32
3.2 Independence and State Ownership of Land through Land Registration ................................. 33
3.3 Privatization and Land Markets in Uganda ..................................................................................... 33
3.4 Contemporary Customary Tenure ................................................................................................... 34
3.5 The Constitution of the Republic of Uganda, 1995 ....................................................................... 35
3.6 The Registration of Titles Act ........................................................................................................... 36
3.7 The Land Act. ...................................................................................................................................... 37
3.11 Conclusion ......................................................................................................................................... 40
CHAPTER FOUR ......................................................................................................................................... 42
CHALLENGES AFFECTING LAND RIGHTS OF CHILDREN AND WOMEN IN UGANDA ..................... 42
4.1 Obstacles to enjoyment of land rights ............................................................................................ 42
4.2 Ignorance of rights by women and children .................................................................................. 42
4.3. Weak institutions .............................................................................................................................. 43
4.4 Prevailing customs and practices on women and children rights on land ................................. 44
4.5 Corruption ........................................................................................................................................... 45
4.6 Low literacy levels .............................................................................................................................. 45
4.7 Conclusion ........................................................................................................................................... 46
CHAPTER FIVE .......................................................................................................................................... 47
vii
CONCLUSIONS AND RECOMMENDATIONS ........................................................................................... 47
5.0 Introduction ........................................................................................................................................ 47
5.1 Conclusion ........................................................................................................................................... 47
5.2 Recommendations .............................................................................................................................. 48
REFERENCES ................................................................................................................... , ......................... 52
viii
list of legislations
The 1995 Constitution of Uganda as Amended,
The 1900 Buganda Agreement,
The Order in Council of 1902,
The Crown Lands Ordinance of, 1903
The Busuulu and Envujjo Law of 1928,
The Public Lands Act 1962,
The Public Lands Act 1969,
The Land Reform Decree of 1975,
The Land Act of 1998, Cap 227 as amended.
Land acquisition Act Cap 226
The Land in Buganda (provisional certificates) Act. Cap 228
Succession Act (Amendment) Decree of 1972
The Registration of Titles Act Cap 205,
The National Environment Act Cap 153
The Mortgage Act Cap 229
ix
Abstract
The research aimed at investigating the extent of the Legal framework on land
registration in Uganda. It strived at the exploration of the legal and institutional
framework governing the land.Laws and the right to land registration is enforced in
Uganda. It also expounds on the conflicts between the provisions of the Land
Amendment Act and tenure system, the gaps between the exploitation of land tenure
systems and other related laws in Uganda. Land tenure thus constitutes a web of
intersecting interest, and these include; Overriding interests, overlapping interests:
when several parties are allocated different rights to the same parcel of land,
complementary interests: when different parties share the same interest In the same
parcel of land, competing interests: when different parties contest the same interest in
the same parcel. And majorly land disputes arise from competing claims. This research
was carried out in Uganda and it brings out the different literature related to land
registration and human rights concerning women and children and how they can be
preserved in relation to land law in Uganda. Finally, the report concludes and
recommends to the various stakeholders on what is to be done and what needs to be
implemented so that both women and children enjoy their rights and freedom in
relation to land matters.
X
CHAPTER ONE
1.1 Background
Land is one of the most important assets of households in many countries and a
primary basis for their lives1. Land continues to be a critical factor, as it is the most
essential pillar of human existence and national development, economic growth since
the agricultural sector employs a big number of the working population and contributes
a lot to gross domestic products in many countries. Land influences spirituality and
aesthetic values of all human societies2• Land is usually a political issue with potential to
be volatile, so its control continues to be a critical factor. Land is the basic resource in
terms of the space it provides, the environmental resource it contains and the capital it
represents the importance as been since time immemorial and therefore a clear
understanding ofthe existing legislation is imperative3.
Since the advent of colonialism, Uganda has never had a comprehensive Land Law.
What have been in existence are the scattered policies and laws on land and natural
resources generally. Post independence attempts to settle the land question and deal
with fundamental issues in land tenure, land management and administration as well as
registration through the Land Reform Decree of 1975, the 1995 Constitution4 and the
Land Act Cap 2275 have had limited success. The Uganda National Land Policy (2013)
consolidates the various scattered policies associated with land and natural resources
with emphasis on both ownership and land development.
1Land tenure and economic activities in Uganda: a literature review RasmusHundsbaek Pedersen, Rachel Spichiger, SarahAiobo and Michael Kidoido, with the collaboration of Bernard Bashaasha and HelleMunkRavnborg, Diis working paper 2012:13
2 Source book of Uganda's land law by J T Mugambwa pg. 22 3Course on land rights and land value capture ,By Earth Rights Institute/ page 10
4 1995 Constitution of the Republic of Uganda 5 Laws of Uganda
1
The key issues addressed by the UNLP include: Historical injustices and colonial
legacies, which have resulted in multiple rights and interests over the same piece of
land; disposition and loss of ancestral land by some communities; border disputes
arising out of tribal, ethnic groupings and trans-state border disputes; and the
ineffective dispute resolution mechanisms, which have resulted into illegal evictions.
Whilst under contemporary issues, Uganda is faced with disparities in ownership,
access to and control of land by vulnerable groups; displacement, land grabbing and
landlessness resulting from high population growth and the increasing demands on land
for investment especially communal lands which are neither demarcated nor titled.
In addition, other issues addressed by the policy include underutilization of land due to
poor planning and land fragmentation; environmental degradation and climate change;
poor management of the ecological systems due to their trans-boundary nature and
unsustainable exploitation arising out of the conflicting land uses and inadequate
enforcement of natural resource management, standards and guidelines. It also tackles
issues of inefficient and ineffective land administration and management system, which
has made the system prone to fraud and forgeries.
The UNLP further introduces essential reforms for escalating land conflicts and land
evictions through re-institution of administrative Land Tribunals, creation of a special
division in the Magistrates Courts and the High Court, and recognition of the dual
operation of both customary and statutory system in land rights administration, land
management and land dispute resolution. The policy further affirms the responsibility
and mandate of the Ministry of Lands to continue performing its residual roles of policy
formulation and implementation, standard setting and quality control, resource
mobilization, and monitoring and evaluation. To implement UNLP, a National Land
Policy Implementation Unit has been designated to coordinate the planning and
implementation of the proposed measures and strategies.
In Uganda, before 1894 agriculture and pastoralism were the major economic activities
in Uganda but all these activities depended on land, the British protectorate later
2
declared land in the territory crown land by virtue of the protectorate. The 1900
Buganda agreement between the British and Buganda fixed Buganda' s once fluid
boundaries, established the institution needed for indirect rule and formulated a land
settlement.
In 1902, the British crown passed the Uganda Order in Council. Under that Order in
Council, statutes made by the Crown, the common law and principles of equity were to
be the legal regime governing the lives of the people in the protectorate. The problems
created on land courtesy of a colonial legacy are to do with disentangling the multiple
and conflicting tenure rights and interests often overlapping in the same piece of land.
Despite attempts to rectify this, the enactment of the Crown Land Ordinance 1903,
Land Legislation Ordinance 1908,Busuulu and Evujjo Law of 1928 for Buganda and
similar laws in Ankole and Taro in 1938, the multi structure of rights persisted and has
become a defining characteristic of the complexity of land relations in Uganda today. It
has been largely blamed for the increasing land conflicts and evictions in Uganda where
resolving dual interests of ownership between registered owner and the bonafide
occupants is nearly becoming impossible. The change of government regime in 1986,
the regime tried to handle the issue of land in Uganda. This came with the
promulgation of the 1995 constitution which led to the passing of the Land Act 19986
to creative the provisions of the constitution which related to land matters. However,
the landlord-tenant relationships enacted under the Land Act Cap 227 has become
controversial, for example the definition of bonafide occupant, the rights conferred on
the tenants and the rent payable. The Land Amendment Act of 2010 attempted to
address these issues although some still remain unsolved.
1.2 Statement of the problem
In Uganda, land is one of the most important assets of households and the most
essential pillar of human existence and national development. Government has
extended its intervention through policies, laws enacted with the aim of harmonizing
6Land Act Cap 227 of Uganda
3
and solving these problems but this has not helped because land problems still persist
in the country. Land cases in Uganda are extremely overwhelming in all regions and
people have faced a number of problems in relation to human rights violations,
Members of Parliament and other officials have debated about the issue but despite the
government efforts to tackle this problem there are still much efforts needed.It is
recognized that undivided political commitment is required to handle land governance
matters. This has been proven true in Uganda. Indeed, President Museveni had to chair
all the six cabinet meetings which approved the National Land Policy. In Uganda, land
is one of the most important assets of households and the most essential pillar of
human existence and national development. However, there has been consistent land
evictions land grabbing, unlawful giving away of public land causing land disputes.
Government has continued and extended its intervention through policies, laws enacted
with the aim of harmonizing and solving these problems but this has not helped
because land problems still persist in the country, hence the need for this investigation.
1.3 General Research Objective
Tile general objective of the study is to investigate the legal regime on land registration
in Uganda.
1.4 Specific Research Objectives
I. To analyze land registration policy, various land tenure systems, land use and
management in Uganda.
II. To assess the policy legal and institutional framework on land registration.
III. To assess the efficacy of land law in respect to human rights especially women
and children's rights in Uganda.
IV. To examine the various challenges facing land registration in Uganda.
4
1.5 Research questions
I. What is the law on land registration policy, various land tenure systems, land use
and management in Uganda?
II. How effective is the policy legal and institutional framework on land registration?
III. What is the efficacy of land law in respect to human rights especially women and
children's rights in Uganda?
IV. What are the challenges affecting land registration in Uganda?
1.6 Scope of the study
The study was carried out in a period of four months; it began in the month of March
to June. The first two months the researcher gathered the secondary data needed for
the research and draft the proposal, and then the following month was for drafting the
entire research that was presented to the supervisor within the last month for approval.
The study was carried out in the Central Region of Uganda; it included districts such as
Kampala, Wakiso and Mukono.
The study investigates the Ugandan land policy, the laws, institutional and policy
formulation underlying the land registration and administration and the effects of the
land registration, use and management to the community.
1.7 Significance of the study
The research was of importance to the government, in formulating policies, getting
solutions and finding where the conflict on land is, by the laws formulated.
The study aimed at creating a general understanding of the major causes of weakness
in the land tenure and land policy in Uganda.
The research is expected to act as a guide for future research about the same topic.
5
The research is significant, as the researcher's partial fulfillment for the requirement for
the award of a bachelor's degree in laws.
1.8 Methodology
This research will adopt a doctrinal research design. In order to achieve the objectives
of the study successfully, a qualitative approach will be utilized with a combination of
secondary sources of information including journals, articles, review of the legal laws of
Uganda will also be required. Doctrinal research is concerned with legal preposition and
doctrines. It is research into the law and legal concepts. The sources of data
are legal and appellate court decisions. Doctrinal research methodology includes
legal concepts and principles of all types cases, statutes, and rules. A doctrinal research
has several advantages such as providing quick answers to the problems as the
researcher is continuously engaged in the exposition and analysis of legislation and case
law, it also provides lawyers, judges and others with the tools needed to reach
decisions on an immense variety of problems, usually with very limited time at disposal,
further it helps the researcher to attempt a logical coherence, consistency and technical
soundness of a legal proposition or doctrine as required in this research. This research
design is therefore most suitable for the research because it will aim at to study case
law and statutory law with a view to find laws consistently and certainly that have been
ignored or adopted in the implementation of the right to a fair hearing under the
Ugandan Land law. This thesis will adopt a combination of mainly qualitative legal
research methods in gathering and analyzing relevant data. These include literature
review, comparative, descriptive and prescriptive methodologies. It draws upon the
analysis of both primary and secondary sources. This is largely a legal research, it is
recognized that there are certain historical, sociological and philosophical underpinnings
of the concept of land registration and administration.
6
1.9 literature Review
According to Baker (1990), traditional land tenure in most of the indigenous nations or
tribes of North America had no formal notion of Land ownership, when Europeans first
came to North America, the sometimes disregarded traditional Land tenure and simply
seized land; they accommodated traditional land tenure by recognizing it as aboriginal
title. Feudal land tenure, a system of mutual obligations under which a royal or noble
personage granted a fiefdom in exchange for a claim on services such as military
service or simply maintenance of the land in which the lord continued to have an
interest.
Further still, he adds ..... that the time ranged from very short terms to the 99-year
leases common in the United Kingdom, and allowing various degrees of freedom in the
use of the property. Fee simple, the holder can typically freely sell or otherwise transfer
their interest or use it to secure a Mortgage loan. Native title, in Austria, native title is a
common law concept that recognizes that some indigenous people have certain land
rights that derive from their traditional laws and customs. Life estate, under common
law, this is an interest in real property that ends at death. The holder has the use of the
land for life, but typically no ability to transfer that interest or to use it to secure a
Mortgage loan. Fee tail, under common law, this is hereditary, non-transferable
ownership of real property. A similar concept, the legitime, exists in civil and Roman
law; the legitime limits the extent to which one may disinherit an heir7
According to Adoko (1997), Western conceptions of land have evolved over the past
several centuries to place greater emphasis on individual land ownership, formalized
through documents such as land titles. Control over land, however, may also be
perceived less in terms of individual ownership and more in terms land use, or through
what is known as land tenure. Historically, in some parts of Africa such as Liberia and
Kenya, Land was not owned by an individual, but rather used by an extended family or
7 An Introduction to English Legal History(3rd edition) 1990 Butterworths. By John Baker ISBN 0-406-53101-3
7
a village community. Different people in a family or community had different rights to
access this land for different purposes and at different times.
Adoko (1997) further asserts that... .... Throughout coastal Liberia, the Urban Elites use
a Western statutory system of land ownership based on individual fee simple titles. In
the Liberian hinterland, indigenous Africans use their own customary systems, which
are based on community or collective ownership of discrete territories. At first, state
policy recognized customary ownership as full ownership rights, whether or not formally
titled. It now recognizes only usufruct rights of possession and use of undocumented
customary claims. This policy has permitted the state to grant concessions for vast
tracks of customary lands, as well as to create National parks and reserves. It has also
contributed to conflict, as indigenous communities lost their food and livelihood source
and an important lynch pin of their cultural heritage.
In Kenya, the new Constitution of 20108, classifies land into public, private and
community and points out that all land in Kenya belongs to the people collectively as a
nation, communities and individuals. However a non-citizen can only hold land on
leasehold, and the leases cannot exceed 99 years. In December 2009, a national land
policy in Kenya was approved, as a result of a long and intensive process to develop an
equitable land policy. In Kenya, Land and politics have long been entwined. The use of
land as an object of patronage to engender support and consolidate power has been
exacerbated by corruption, forced eviction, government backtracking, and lack of
redress for those who have lost land through violence. Insecure land tenure and
inequitable access to land and natural resources contribute to conflict, which occurred
most recently leading up to and following the disputed December 2007 elections9•
Legislation has failed to rectify the marginal role in the management of Land and
Natural resources. In both the Statutory systems and Customary practices, People's
rights of use and ownership over resources are not equal to those of men.
82010 constitution of Kenya chapter 5 articles 60-68 9 USAID land tenure and property rights portal of Date: Aug 2010
8
Abwoli (2000) investigated the The 1900 Uganda Agreement between the British
colonial administration and the chiefs of Buganda10 made land in Buganda parceled out
to landlords including religious institutions, they gave out Land which was already
occupied, for instance by 1900 population density in Busiro County, were 279 persons
owned land per square mile. It is these persons whose land was given away and started
paying Busuuluto the landlords. By that time, the British Colonialists made agreements
with traditional leaders of Buganda, Tooro, Ankole, which granted traditional rulers and
chief's large chunks of land as Mailo, Freehold and the balance was declared Crown
Land, most of this land was hitherto occupied by people under Customary Tenure and
was given away under the Mailo and Freehold Tenure Systems.
It was found that many people became tenants, but consequent legislation ensured
that they had protected rights on such land. The problem is that many tenants and or
their descendants consider themselves real owners of the land, victimized by the British.
Likewise the land title owners' holders also considered themselves the real landowners
since they have the strongest proof of ownership. Uganda reformed its land tenure
systems with the new Constitution in 1995 and the Land Act in 1998, the reform works
by reorganizing existing rights to land, by decentralizing the responsibility over the
administration of land to the local level, i.e. to the District, Sub-country and Parish
levels.
According to Mugambwa (2010), Uganda has a the legal framework governing land
tenure, land administration and the settlement of disputes. However land has been
registered in the names of individuals, typically the male heads of household, implying
that people tend to lose customary control over land, gender inequalities in law and
practice, have challenged land reform initiatives. District like Bushenyi, 69.9% of 103
respondents reported that landholdings are acquired through customary means,
including family access, donations and inheritance.
10Source book of Uganda Land Law by John. T. Mugambwa page 2
9
The 1995 Constitution made outstanding provisions in Art.237, vesting land in private
citizens who can own land under one of the following tenure systems; Mailo, Leasehold,
Freehold and Customary11. These Constitutional provisions however did not adequately
solve the historical conflict between Mailo landlords and tenants. Neither did they
clearly explain, to many Ugandans when and how the government could compulsory
acquire an individual's land12. The Constitution neither clearly showed on what basis the
government for the benefit of the citizens nor addressed the claims of land to be
returned to especially to Bunyolo Kingdoms as it was done for the Buganda Kingdom,
these issues together with how the ease of land acquisition can promote or slow
development have been the major land questions debated in the Country since 1995.
Currently in Uganda, land disputes and evictions are some of the most outstanding
unresolved National issues that threatens the peace and stability of the Country. It is
apparent that the past attempts and Land reforms both during the Colonial and the
Post-Colonial periods have failed to resolve these issues once and for all. Today more
than at any other time since Uganda's independence, these issues have assumed a
center stage in the Country's political and legal discussions. Several reasons explain
this, prominent among these are; the absence of a clear and a Comprehensive National
Land Policy, a bad and weak Land Law, the Ad hoc and sometimes reckless give away
of the land and impunity associated with a category of land owners that use politics
clout to get away with massive and violent evictions of tenants off land.
In Uganda the enjoyment of land is dependent on different tenure systems which
include; Mailo tenure, leasehold tenure, Freehold tenure and customary tenure13 It's the
first tenure system specified under the 1995 Constitution14 and the Land Act15,
11 Article 237(3) of the 1995 constitution of Uganda
12 Uganda· s difficult path towards an agreeable National Land Policy: The challenges of turning our land into a real development tool. By Gerald Busingye, published march 30.2007
13 Article 237(3) of the 1995 constitution of Uganda 14 Article 237 (3)(a) 15 s 2(a) Land Act cap 227
10
Customary land tenure is a complex system of land relations, the incidents of which are
always incapable of precise definition, s 3(1)16 Customary tenure applies to specific
rules of a given area; it is owned and used either individually or communally and in
perpetuity. With the 1995 Constitution and the Land Act Cap 227, Customary tenure is
recognized on a par with Freehold and under this type of tenure system, people may
own or have the rights to use land, but they have no tittles. However, under Art.237(4),
on the coming into force of the Constitution, all Uganda citizens owning land under
customary tenure may acquire certificates of ownership in a manner prescribed by
Parliament; and land under customary tenure may be converted to freehold land
ownership by registration.
However in Pre-colonial Uganda, there were three broad customary land tenure
systems. And these where communal or tribal tenure, clan tenure and nomadic
tenure17.under the British Protectorate administration all land in Uganda except Mailo
land was crown land either by virtue of protectorate or by treaty with the local rulers,
though customary tenure was reorganized but within limits18 The 1995 Constitution19
and the Land Act2° provides for this tenure system. Freehold is the holding of the land
in perpetuity or for a period less than perpetuity. Under Freehold the owner can
exercise full powers of ownership including the power to use and develop the land,
produce from the land and disposing of the land to any person. Freehold were first
allocated in Toro in 1900 under the Toro agreement and this process followed in Ankole
1901 under the Ankole agreement. Freehold land was given as a grant to the citizens of
Uganda and existing institutions by the Colonial government before independence in
1962. It is a classic, individual type of land tenure which reduces community control
over land significantly. A study undertaken in five districts, Kabale, Ntungamo, Isingiro,
Mbarara and Kiruhuura, found that Freehold tenure is the most valued by landowners
and national lending institutions.
16 Land Act cap 227 170boi-Ochola, Customary Land Law and the Economic Development in Uganda, page 78-79 18 Source book of Uganda Land Law by John.T.Mugambwa page 4 19 Article 237(3) 20 s 2 Land Act Cap 227
11
The legality of this form of tenure is derived from the 1995 Constitution and the Land
Act which involves ownership of land in perpetuity21• The Mailo system was introduced
by the Colonial authorities in mutual agreement with the Buganda Kingdom in 1900. It
gave the King and the Feudal landlord's Freehold rights over large chunks of land, often
inhabited by poorer subjects who then became tenants of Bibanja. The allocations were
expressed in multiples or fractions of square miles. Hence, the term 'mail a', which is a
I uganda language corruption of the English word 'mile' 22. This type of tenure system is
prevalent in some regions of Uganda, for example Buganda.
This allocation of land was to be the source of land problems since the people who
were formally using and enjoying land without interference were now subject to
payment of rent and those who failed to pay were subjected to eviction by the landlords
which made them become landless. However, attempts were made to solve land
grabbing issues by the enactment of the Busuulu and Envujjo law in Buganda and
Ankole and Taro Landlord and Tenant Laws in Ankole and Taro respectively. And as a
result of Land Reform Degree in 1975, the Mailo system was abolished only to be re
introduced in the 1995 constitution 23
A particular version of Mailo tenure can be found in Kampala, where most land is Mailo
land, but where the predominant means of obtaining land, now, is through purchase of
plots from either Mailo owners or Mailo tenants, thus reducing the role of the Buganda
Land Board in Land distribution. Mailo tenure presents one of the main challenges to
the government's ambition of streamlining land tenure and land administration. In
many areas occupation of land is overwhelmingly by bonafide occupants, maybe that's
the reason why conflicts over land seem to be more prevalent among households in
central Uganda, where the Mailo system of land tenure prevails. This is provided for
under the 1995 Constitution24 and the Land Act25. This is a form of tenure created as a
21 s. 3(4) land act cap 227 22 Source book of Uganda Land Law by John.T.Mugambwa page 2 23 J.T Mugambwa, source book of Uganda's land law-Kampala: 2002 pg4 24 Article 237(3) 1995 constitution 25 S 2( d) of land act cap 227
12
result of an agreement between the lesser and the lessee to the effect that the latter
will enjoy exclusive possession of land to a specific and certain duration in consideration
of cash payment called rent moving from a lessee to a lesser26• This tenure system
became a major feature in Uganda in 1975 when all land was made Public land and
could only be enjoyed by way of Leasehold. The Leasehold is a flexible device, which
many countries have found important to them. However,it is not clear under the Land
Act 1998 Cap 227 whether leases can be created under Customary land tenure, though
there is no doubt that the NRM regime recognizes leaseholds, even though the
conditions of obtaining such a lease may be different from what they would be under
Freehold or Mailo tenure.
Conflicts on land were as a result of history and these can be traced from Pre-Colonial
Uganda and can be attributed or associated with the multiplicity of the tenure systems
which were generated from 1900 Agreement. People who were the initial owners of
land became squatters on their own land. And various laws such as Busuulu and
Envujjo law of 1928, the Toro Land lord and Tenant Law of 1937 and Ankole Landlord
and Tenant Law 1937 were enacted to solve the problem but the target was not
achieved, because the law allowed the landlords to evict the tenants only where there
was a good reasons to do so though this was abused by the land lords
Customary tenure creates complexities in its managements and administration because
there is no specific requirement for registration, though Art. 237(3) expresses the need
for registration, From the foregoing, it is clear that the mailo tenure systems presents a
multitude of conflicts on land, in fact Uganda should adopt a tenure system composed
of only freehold and leasehold. The Land Act of 1998 is a major land reform and
provides for security of tenure and ownership of land. The Land Act came into force in
1998, most of its provisions have been mentioned in the 1995 Constitution and the law
was intended to give them practical effect. The two most important issues covered by
the Land Act are ownership and tenure rights and land administration.
26 s 3(5) land act cap 227
13
While the previous Land Reform Decree of 1975 had sought to increase control over
land by the central government and make tenure conditional on the land's
development, the Land Act of 1998 is part of a very different policy, it expressly limits
government owned land to that was being used by the government when the
Constitution of 1995 came into force. It stipulates that if the government requires
additional land it must purchase it.
The Land Act also upholds the Constitution's support for any ones property rights by
stating in Art. 2627, this could be viewed as a provision that was made mainly for
women to access Customary land, because there are many Customs or Traditions that
denies women access to ownership, occupation or use of land and this violates the
rights of women in the 1995 Constitution. The 2004 Amendment to the Land Act28 gives
all spouses the right to security of occupancy on family land and requires consent of the
spouses for transactions of family land; the Land Act further outlines what obligations
tenants and landlords have towards one another. The 2010 Amendment was made to
the Land Act which requires court for a lawful or bona fide tenant on Mailo land to be
evicted, and also requires landlords looking to sell to give tenants the first option to
buy.
As envisaged by the 1995 Constitution of Uganda, it establishes machinery at various
levels for the administration of land for the settlement of land disputes, there by
reflecting the importance that the government attaches to land matters as well as its
belief that the decentralization of authority will promote a democratic culture. Though
land reform process is needed to consider the appropriateness and cost-effectiveness of
existing systems of land administration and management, because these systems are
centralized and inefficient in land management and costly, inaccessible systems of land
administration.
27 1995 constitution of Uganda 28Land act Cap 227
14
1.10 Chapterization
This research included five chapters, the first chapter introduced the study and it
included the background, statement, objectives, literature review concerning modes of
ownership and tenure systems in Europe, North America and East and Central Africa,
methodology, scope of the study, significance and the research questions.
The second chapter examinedvarious land tenure systems, land use and management
in Uganda and how registration of land is handled in each tenure as well as different
perspectives of different countries like Mali, France, Austria and US on land registration
and administration especially among women and children rights.
The third chapter examined the legal laws and policies and institutional framework on
land tenures in Uganda and on land registration through looking at the pre-colonial land
tenure, colonial impact on land tenure, titling and registration, independence and state
of ownership, land use, registration, privatization and land markets contemplating
customs tenure, gender and children issues under the law.
The fourth chapter looked at the challenges affecting land rights of women and
children, the obstacles to enjoyment of land rights, ignorance of land rights among
women and children, weak institutions, prevailing customs and practices concerning
women and children rights on land in Uganda.
Finally, the fifth chapter included the conclusion and recommendations of the research
including overcoming corruption, public awareness of the laws on land registration, land
reforms, the need for regional and institutional policies and to ensure adequate and
effective institutional coordination among others.
15
CHAPTER TWO
CONCEPT AND UNDERSTANDING OF lAND TENURES
2.0 Introduction
Land law and human rights have never seemed particularly natural allies. Perhaps it is
because the popular notions of property and humanity appear somehow antithetical, a
jarring juxtaposition of the self- regarding impulse towards personal appropriation and
another-regarding vision of the intrinsic merits of strangers. Again, land Jaw and human
rights law may have tended to look like polar extremes of jurisprudential concern
precisely because, across the distance of the supposed public-private divide, the rather
different resonances of their unshared terminology the intellectual tenor of divergent
legal traditions intensified the impression that these areas were culturally and
substantively quite distinct. Their Jack of congruence may have appeared all the more
understandable in those jurisdictions where the allocation of the primary goods of life
was already largely settled and where disputes over land seldom raised fundamental
issues of raw human entitlement.
2.1 land tenure, land use and management as well as land Registration
2.1.1 International perspective
Habitat for Humanity International (HFHI) led nearly 30 Housing Indicators surveys in
different cities around the world since 2010, targeting indicators that assess the health
of the housing market and the quality of policies related to it. This effort has been
complimented by various collaborations and working groups with the Inter - American
Development Bank (IADB), The World Bank, the U.S. Department of Housing and Urban
Development (HUD), the United Nations Human Settlements Programme (UN- Habitat),
among others. The assessments are conducted and completed by in-country experts
and HFHI convenes a team of experts both inside and outside the country to review the
16
GHI results. The GHI website provides a one-stop portal for transparent data,
discussion, debate and dissemination.
The Global Housing Indicators survey analysis demonstrated that in the case of
Armenia, statutory laws in place are established to ensure women's rightful access in
land. Under the Civil Code, women and girls as widows and daughters have the same
inheritance rights as men and boys. However, there is no information readily available
regarding how women enjoy their inheritance rights in practice in Armenia.29 The
marriage act is based on the civil code that is gender neutral, which means that
property acquired during the marriage is fairly split between the wife and husband in
the event of a divorce. Research did not yield any discriminatory behaviors in the land
titling environment. The tenure systems in Armenia are mostly favoring privatization
and investment attraction, with a high rate of decentralization and self-governance but
with the same statutory laws nationwide. There are no recognized differentiations
between the laws applied in the 10 different provinces30• Land gained a great deal of
importance after the independence of Armenia from the former Soviet Union: the
national government compensated the centrally planned industrial economy failure with
decentralized agriculture and opening to international markets.
There is not enough documentation on the customary practices in Armenia. The authors
advance the hypothesis that most of the customary laws disappeared during the years
when Armenia was under the communist regime. However, there are sti ll covert types
of discrimination against women. It is a common practice that women are paid in the
workplace less than their male colleagues with the same job description. Women are
falling behind men in employment in Armenia. For example, according to the UN data,
in 2009 the share of women aged 15 to 64 in the labour force was 59.6 percent
compared to 74.6 per cent for men. As of 2011 the gender pay gap was 39.2 %yet the
National Population Census shows that the share of women aged 15 to 75 in the labour
29Articles 1216 and 1222, Civil Code of the Republic of Armenia 30Statistical Yearbook 2007, Armenia National Statistical Service, Yerevan
17
force was 44.4 percent compared to 55.6 per cent for men31. Also based on the
Armenian Statistics Data collection as of 2008, the poverty rate among women was
55.6 as compared with 44.4 per cent of poverty among men. Although they form 56
percent of the workforce, women constitute only 16.98 percent of the population that
have construction loans32, and only 31.9 percent are registered as business owners33
which can be significant to the issues women might be facing in accessing land.
2.1.2 Regional Perspective
In the 1990s, the World Bank supported a land observatory to understand land tenure
issues in Africa generally Mali and their impact on productivity and economic growth.
They also worked to develop models to encourage private investment in irrigated land.
From 1998 to 2007, the National Rural Infrastructure Project implemented an irrigation
component that piloted efforts to deliver land titles to private investors to encourage
the settlement and subsequent development of 1,149 hectares within the Koumouna
perimeter. This process facilitated the selection of 130 small-scale producers and
supported their dialogue with a local bank, which loaned the producers CFA 200 million
(approximately USD 420,000 in 2007 US dollars) to build irrigation canals and procure
inputs. It was noted that it took almost four years to adopt the decree for the pilot land
tenure program (World Bank, 2008). The project's second phase (2001-2005) promoted
titling of smallholder irrigated areas totaling 2,400 hectares within the Office du Niger
(at a total project cost of USD 11.2 million). The model used was one of 'Lease
Purchase' Arrangements, in which the government financed primary infrastructure
development (such as dams and principal canals) and pre-financed the development of
secondary infrastructure through cash grants to poor smallholder farmers. This portion
had to be fully reimbursed by beneficiaries over several years, with the proceeds used
for further irrigation development. Beneficiaries received full land ownership with land
titles after full payment.
310verall employment: 1,057,735 (men: 588,358 and women: 469,377) 32World Bank Statistics 33World Bank Gender Statistics 2009
18
The World Bank-financed Private Irrigation Promotion Project, meanwhile, supported
individual investors to acquire land titles, develop investment plans, and prepare loan
applications for possible financing by local banks. This model targeted higher income
beneficiaries, typically living in urban or peri-urban areas. This was expanded under the
National Rural Infrastructure Project to the Office du Nige~4 • Under the current Growth
Support Project that began in 2005, the World Bank conducted a review of the Code
Domanial et Fancier and is encouraging the Government of Mali to facilitate the
transformation of customary land rights to statutory law by reducing formalization fees
and streamlining the administrative systems involved. The Bank continues to promote
land tenure securitization within Mali, developing a project to support rural development
and agricultural productivity that will include a component focusing specifically on
access to rural lands for agribusiness activities and small-scale farming.
2.1.3 Ugandan perspective
Uganda's constitution grants provisions for gender equality and prevails over customary
practices that contradict its core values. The legal system is a mix of English common
law and customary law35.The Ugandan land law does not specifically enforce gender
equality and the clan system does not provide a sufficient security to the female tribe
members.
The housing indicators based analysis demonstrates that legal inheritance is a big
impediment to women's land tenure. The survey indicates that even though the law
allows women to own, buy, and inherit land, the common practice is that most of the
land owned by women was bought and not inherited due to the cumbersome
inheritance law. Also, the GHI mentions that the joint land titling, even though it is
available by law, is limited to the wealthier portion of the society; there is no clause in
the constitutional provisions for joint property binding two married people - this makes
it difficult for women to have access to the land acquired during the period of their
34World Bank, 2000. 35Report of Commission of Inquiry into Land Matters (1973), 3, [3].
19
marriage. Joint titling is not a common practice due to the fact that 75 percent of the
land is still under the various customary laws, which favors male heirs over their female
counterparts, showing gender-biased practices.
Marriage in Uganda is mostly customary36 and therefore it does not legally bind the
husband to share any acquired property with his consort, which makes women's
situation economically critical if they face the events of divorce or widowing. Since the
Ugandan society is mostly patriarchal, except for the region of Buganda that benefits
from a matrilineal inheritance customs37, the relation to land goes through the male
heirs, and the view of women as property holders is unconventional. Practices such as
dowry, bride price, polygamy or the legitimized abandonment of the wife due to her not
bearing a male descendant, reinforce the socially accepted idea among most of the
Ugandan population especially the rural part- that women are not made to inherit or
own land, and that it is a man's right. This perception takes a stronger turn when it
comes to inheritance practices: because tenure of land is male oriented, and because
either land or marriage bonds are seldom registered, the patriarchal rule is the one that
prevails. Women fail to inherit parental land once they get married, if they don't have
children, and when they do have children, the land is often passed directly to the
children38. The percentages of inherited land vary between 60 percent of land
inheritance when it comes to male-headed households and 39 percent of female
headed households inheritance rate39. Women's equal right to inheritance has not yet
been recognized in national legislation. With regard to the rights of widows, the
Succession Act is in violation of the Constitution and the country's international
36Section 11 37In 1983, the Provincial Government of Morobe enacted its own legislation for registration of customary land, but the national scheme within wh ich it was supposed to operate did not materialise. 38James, above n 38, 194. Professor James suggests at 195 that the national government was more concerned to use the incorporated land groups to facilitate the plantation redistribution scheme under wh ich alienated land was to be restored to the original landowners rather than a reform measure of customary landholding. More recently, clans and landowning groups have been incorporated under the Act in oil-rich areas in the Southern province to facilitate payment of royalties (Mugambwa et al, above n 53, 190). 3~im Curtin, HartmutHolzknecht, and Peter Lamour, 'Land Registration in Papua New Guinea: Competing Perspectives' (Discussion Paper 2003/ 1, State Society and Governance in Melanesia Project, ANU Research School of Pacific and Asian Studies, 2003).
20
obligations as signatory state to treaties prohibiting discrimination against women on
the basis of their sex40•
2.2 Legal and institutional framework on land registration, women and
children's rights
Explicit rights to land have been developed in two key areas of international human
rights law, the rights of indigenous people and the rights of women. Land access and
use is frequently tied to the spiritual, cultural and social identities of peoples. As such,
land rights have been more fully developed in the sphere of indigenous rights.
Convention 169 on Indigenous and Tribal Peoples, which was adopted by the
International Labour Organization in 198941, is legally binding on States Parties and the
only binding international instrument related to the rights of indigenous peoples. The
Convention establishes the right of indigenous peoples in independent countries to
"exercise control, to the extent possible, over their own economic, social and cultural
development," in a number of areas.42 The Convention includes a section on land, and
requires States Parties to identify lands traditionally occupied by indigenous peoples and
guarantee ownership and protection rights. 43 In essence, the "measures shall be taken
in appropriate cases to safeguard the right of the peoples concerned to use lands not
exclusively occupied by them, but to which they have traditionally had access for their
subsistence and traditional activities. "44 The Convention also requires the provision of
legal procedures to resolve land claims,45 establishes rights over natural resources,46
40 Ibid 41lnternational Labour Organization, Convention 169, Indigenous and Tribal Peoples Convention, opened for signature Jun. 27, 1989, available at http://www.ilo.org/ilolexjcgi-lexjconvde.pl?C169 [Hereinafter ILO Convention 169]. 42Id. at art. 1 43Id. at art. 14 44ld. at art. 13 45Id. at art. 14. 46Id. at art. 15
21
protects against forced removal,47 and establishes a right of return and compensation
for lost land through either land (of at least equal quality and quantity) or money.48
In 2007, the U.N. General Assembly adopted the Declaration on the Rights of
Indigenous Peoples, which states that "indigenous peoples have the right to the lands,
territories and resources which they have traditionally owned, occupied or otherwise
used or acquired."49 The Declaration, while not binding, states that indigenous people
have a right to own and develop resources on their land, a right to legal recognition of
indigenous lands by states, and a "right to redress ... for the lands, territories and
resources which they have traditionally owned or otherwise occupied or used, and
which have been confiscated, taken, occupied, used or damaged."50 Both the
Convention and the Declaration emphasize participatory dialogue and the need for free,
prior, and informed consent with respect to decision-making about lands occupied by
indigenous peoples,51 especially where the relocation of peoples from land is under
consideration.
Land rights are also invoked in the international legal framework on women's rights.
The Convention on the Elimination of all forms of Discrimination against Women
(CEDAW) requires that State Parties "shall ensure women the right to ... equal treatment
in land and agrarian reform as well as in land resettlement schemes .... " CEDAW also
provides that both spouses must enjoy "[t]he same rights . . . in respect of the
ownership, acquisition, management, administration, enjoyment and disposition of
property" in marriage. 52 Equal rights to inherit, purchase, and dispose of property also
promote women's rights more generally. While land rights are not explicitly developed
more fully in this Convention or elsewhere in the core human rights treaties, however,
47Id. at art. 16 48 Ibid 49United Nations, Declaration on the Rights of Indigenous Peoples, art. 26(1), Sept. 13, 2007, available at http:((www.un.org/esa(socdevjunpfii/documents/DRIPS_en.pdf [Hereinafter Declaration on the Rights of Indigenous Peoples]. The Declaration was adopted by the General Assembly but is not legally binding on state parties. 50Id at art. 26(2), 26(3) & 28 51The Right to Housing. 52"The Right to Housing.
22
the human rights framework clearly dictates that human rights be applied non
discriminatorily and equally for all people.
In Mali, customary land tenure systems have their origins in the Mandingo Empire of
Soudiata Keita and the KouroukanFouga agreements of 1235 (USAID, 2010), which
vested ultimate authority over land in the hands of the Emperor while devolving use
and management to local authorities (the Regional Assembly, the Circle Council, and
commune councils). Land rights were passed on through lineage and the principle of
the firstcomer. This arrangement, in which married women were excluded from holding
land rights, persisted for centuries and is still used today by the Bambara people.
Modifications to these land tenure arrangements were made in 1818, when a set of
rules based on local practices and Islamic beliefs were introduced by the Macina Fulani
Empire. Here, access to resources including pasture lands, lakes, and rivers came under
more formal control, whereas forests, wild products, and wildlife were considered open
access resources.
The French colonial period (1892-1960) saw the introduction of the 'miseenvaleur'
principle, which required registered lands to be put into productive use. Those with
ownership rights to registered lands who were not using land productively could lose
land access and rights, with the land being transferred to others who promised to put it
to productive use. A category of registered lands titled 'vacant lands without owner' was
also created, enabling the colonial power to take lands or transfer ownership to meet its
needs. This retrenchment of state authority continued after independence in 1960 with
the nationalization of all land; while parcels could be used for various purposes, the
state reserved the right to take back any lands it needed.
The PolitiqueFonciereNationale is an attempt to ensure greater coherence between the
disparate codes, laws, and regulations governing the use of land and other natural
resources in Mali, in line with the African Union's guidance to member countries to
develop strategic land policies. The policy is being drafted under the auspices of the
Ministry of Housing, Land Issues, and Urban Planning, which launched a national
23
dialogue to help build consensus for elements of a comprehensive land policy. While
the policy theoretically should address all land, it is anticipated that the draft land policy
will ultimately focus more on urban and peri-urban land tenure issues. Rural land tenure
and land management procedures will still largely be covered by the new Agricultural
Framework Law (LOA).
The 2000 Code DomanialetFoncier53 is another key document pertaining to land tenure
that is currently under revision. The existing Code recognizes customary practices
regulating ownership and access to natural resources and that any transfer of
customary land rights to the state can only occur in cases serving the broader national
interest, subject to fair and prior compensation54• Article 4855
, meanwhile, emphasizes
that agreements between individuals or communities based on customary practices and
procedures can be formalized in writing and that this documentation serves as proof of
land transactions. While these declarations are positive indications of respect for
customary rights, these legal precepts have never been translated into decrees or
administrative practice, which is perceived as an indication of policymakers' hesitancy to
proceed with formalization of customary rights. Without a clear definition of customary
rights, in practice it has been difficult to determine which system prevails the Code
DomanialetFoncier or customary rights when conflict arises. And while the Code allows
for the devolution of management of land and public properties to the jurisdiction of
local governments, the transfer of legal responsibilities over land to decentralized
entities has largely not yet occurred.
The Uganda Constitution of 1995 vests land in Uganda in the citizens of Uganda owned
in freehold, Mailo (quasi-freehold), leasehold and customary tenure.56 With the
exception of Buganda (central region) and urban areas, most land in Uganda is held
under customary tenure. As may be recalled, hitherto customary landowners were
legally 'tenants at will' on government land. Under the Land Act 1998) customary
53 Article 46 of the 2000 Code Domanial et Foncier "Article 43 of the 2000 Code Domanial et Foncier 552000 Code Domanial et Foncier 56 Article 237(1) & (3) of the Constitution of the Republic of Uganda
24
tenure, like freehold tenure, entails ownership of land in perpetuity.57 Article 237(4)58
of the Constitution empowers all Ugandan citizens owning land under customary tenure
to acquire certificates of customary ownership in respect of their land in a manner
prescribed by legislation. The Land Act 1998, reiterates the constitutional right of
individuals, families or communities owning land under customary tenure to apply for a
certificate of customary ownership in respect of their land. The certificate of customary
ownership is deemed by the Act to be conclusive evidence of the customary rights and
interests endorsed thereon. 59 Subject to any restrictions endorsed on the certificate,
generally, a certificate holder individual or group has a right to deal with the land just
like any other landowner. Thus, he or she may mortgage, lease or sell the land, except
where such right is precluded or restricted by the certificate. 60
Interestingly, the legal recognition of customary land tenure did not necessarily
translate into a pro-customary land tenure policy. Indeed, the position it is quite the
contrary. The Constitution gives customary landowners a right to convert their title to
freehold in accordance with any law enacted by Parliament. That law is the Land Act
1998. Section 10(1)61 of the Act provides that any person, family, community,
communal land association, holding land under customary land tenure may convert
their tenure to freehold by following the prescribed procedure. The normal practice is
for customary owners to apply for a certificate of customary ownership and later, if they
wish, apply to the relevant authority to convert their customary title to freehold.
However, it would seem from the Act that possession of a customary certificate of
ownership is not a pre- requisite for conversion to freehold; applicants may fast-track
the process by directly applying to the authority to convert their customary tenure to
freehold. 62 Although the provision for conversion is mainly aimed at individuals,
landowning groups or communities could also apply to convert their customary title to
57Section 4(1)(h) and 4(2) 58 Constitution of the Republic of Uganda 59Section 8(3). 60Section 9(2) (c), (d) and (f) 61 Land Act 1998 62Th is is implied ins 12(4) and 13(2) of the Land Act 1998
25
freehold. 63
It is thought that the way forward for Uganda is not to dismantle customary land tenure
in those parts of the country where customary land tenure is still very widely practiced;
rather it should be encouraged. The provision for registration of customary titles under
the Land Act is a step forward in this regard. Further steps may need to be taken to
change the perception that freehold is superior to customary title. Conversion of
customary title to freehold should be actively discouraged. This may entail amending
the Land Act, if necessary, to ensure that a certificate of customary land title is treated
on a par with a registered freehold title. More importantly, the people, especially
outside the relevant region (including financial institutions), should be made aware of
this.
2.3 Human rights meanings and concepts related to land management
In England, by contrast, the interface between human rights discourse and the law of
real property came to seem somewhat limited amidst the relative affluence of a post
war welfare state in which the oppressed and the dispossessed Frantz Fanon's
'wretched of the earth' were conspicuous mainly by their absence. For these, and many
other, reasons the intricate machinery of the Law of Property Act 1925 and its satellite
legislation contains little which could be confused with the positive protection or
reinforcement of basic concepts of human freedom, dignity and equality. The rights
upheld by the 1925 legislation (and by its associated regimes of registration) are, in
general, derivative or transaction-based rights rather than rights of an original character
arising in spontaneous vindication of free-standing perceptions of human worth. Still
less did the formative property jurisprudence propounded by an earlier generation of
Victorian judges overtly endorse any intrinsic link between property and human values.
For instance, the overseers of England's industrial revolution cared little for that most
modern of concerns the human right to respect for privacy.64
63Section 23, Land Act 1998 64Gray, Property in Thin Air, [1991] ClJ 252 at 259-6
26
The sole sense in which notions of human freedom impinged on the 19th century world
of real property was evidenced by the landowner's more or less unconstrained power to
exploit his land as he saw fit without regard either to the needs of others65 or to any
higher conception of the irreducible rights of his fellow human beings.66 Most famously,
in Bradford Corpn v Pickles,67 the House of Lords allowed a landowner, even though
acting maliciously, to cut off a supply of clean water which would otherwise have served
the rapidly developing domestic, sanitary and industrial requirements of the city of
Bradford. As Lord Macnaghten indicated,68 the landowner might prefer 'his own
interests to the public good' and might indeed be 'churlish, selfish, and grasping.' But,
although his conduct might seem 'shocking to a moral philosopher', the House of Lords
refused to intervene.
Yet the assumed dissociation of land law and human rights has always been one of the
larger (but no less insidious) myths of the law. The law of property silently betrays a
range of value judgments about the 'proper' entitlements of human and other actors.69
These value judgments reflect a complex picture of social relationships and rankings,
each casting a shadow on some extra-legal index of freedom, dignity and equality. For
instance, the law of matrimonial property long bore the imprint of a dogma of marital
symbiosis which ensured that, deep into the 20th century, a substantial portion of the
population lived most of their adult life in a state of legal and factual dispossession. The
medieval notion of spousal unity of husband and wife as 'one flesh' had the effect of
suspending the legal personality of the married woman and rendering her incompetent
to acquire property or even to earn wages in her own name.70 As Lord Denning MR
65Tapling v Jones (1865) 11 HLC 290 at 311, 11 ER 1344 at 1353 per Lord Cranworth (every man has 'a right to use his own land by building on it as he thinks most to his interest'). 66Lord Hoffmann's recent description of human rights as 'rights which belong to individuals simply by virtue of their humanity, independently of any utilitarian calculation' (R (Alcon bury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 at 14110-E). 67 [1895] AC 587. 68[1895] AC 587 at 601. 69Gray and Gray, Elements of Land Law (3rd edn, Butterworths, London 2001), pp 95-6. "'The married woman's persona at common law was 'incorporated and consolidated into that of the husband ... her baron, or lord' (Blackstone, Commentaries, Vol I, p 430). See Gray, 'Property in Common Law Systems', in G.E. van Maanen and A.J. van der Walt (ed), Property Law on the Threshold of the 21st
27
acidly observed some time later/ 'the law regarded husband and wife as one: and the
husband as that one.'71
The invidious discrimination practiced against the married woman was reversed only
slowly by the long-term effects of the Married Women's Property Acts of 1870 and
18821 but the historical process provides yet another reminder of the way in which1 as
Professor C.B. Macpherson pointed out/2 the idea of property is being gradually
broadened to include a 'right to a kind of society or set of power relations which will
enable the individual to live a fully human life.' Indeed/ in an older and more
enlightened property philosophy which lies deeply embedded in Anglo-American political
thought1 the concept of 'property' was always accounted as inclusive of a person's 'life1
liberty and estate'.73 This Lockean articulation of the coalescence of property and
human right was to have energising -- even revolutionary consequences. For James
Madison in 17921 just 'as a man is said to have a right to his property/ he may be
equally said to have a property in his rights.' By that stage/ of course/ the American
colonists/ in active assertion of 'certain unalienable rights' 1 had just thrown off the yoke
of British rule and1 equally important/ had altered the Grundnorm of a large part of a
continent's land law.74
In Mali 1 customary law and statutory land tenure systems continue to exist alongside
one another. In rural areas such as those in which SUR1M will work/ customary systems
still take precedence in spite of land tenure reforms and decentralization efforts. In
Niger/ for instance/ the Rural Code is being only marginally implemented/ two decades
after its introduction. Where it is implemented/ it has uncovered latent conflicts without
Century (MAKLU, Antwerp, 1996), pp 238-40. It is remarkable that the full legal capacity of the married woman was finally recognised in England only in the Law Reform (Married Women and Tortfeasors) Act 1935 71Williams & Glyn's Bank Ltd v Boland [1979] Ch 312 at 332C. 72'Capitalism and the Changing Concept of Property', in E. Kamenka and R.S. Neale (ed), Feudalism, Capitalism and Beyond (ANU Press, Canberra 1975), p 120. 73John Locke, Two Treatises of Government (2nd critical edn by P. Laslett, Cambridge 1967), The Second Treatise, s 123 (p 368). 74After the close of the Revolutionary War the land law system of the former colonies became 'allodial' (see Stevens v City of Salisbury, 214 A2d 775 at 778 (1965); City of Annapolis v Waterman, 745 A2d 1000 at 1006 (Md 2000))
28
providing an accessible and effective dispute-resolution forum, thus reducing tenure
security. In this context, reconciling the two systems through the formalization of local
customary rules surrounding resource ownership and use (through AFPRs and Rural
Land Charters in Burkina Faso, for instance) is a clear priority for development
interventions. While this should recognize the wide diversity of different forms of
customary tenure rather than simply seeking the rapid absorption of local rights into a
framework of private ownership (Delville, 2010) and be made as simple and accessible
as possible, registration of customary systems should be careful not to formalize
discriminatory practices that disadvantage vulnerable groups, including women and
pastoralists. In cases of new legislation regarding means of registering customary
rights, such as Burkina Faso's new Rural Land Tenure law, there is a need to raise
awareness on legislative provisions and to support local institutions in implementation.
Support is also needed to strengthening local conflict resolution systems, a necessary
precursor to negotiations over customary land and resource access.
Decentralization efforts in all three countries have created opportunities, if not always
the means, for effective local resource management. There is a critical need to build the
capacity of relevant institutions including those at the national, local, village, and
community levels to resolve conflicts, register customary rights, issue land titles, and
manage local resources. Support to local government offices in realizing revenues from
land management could strengthen their ability to sustain their work and improve public
services. Strong community-based natural resource management can play an important
role in disaster risk reduction and climate change adaptation. The intersection of new
land tenure laws and policies, coupled with increasingly decentralized land
management, have created institutional frameworks whereby shifting land uses can be
more effectively planned or managed.
The experiences of women-focused land tenure interventions in the Sahel illustrate both
the pressing need for change and the imperative for patient, well-designed
development projects that take into account deep-rooted cultural sensitivities. The
Alatona project in Mali offers the clearest example of how this balance can be struck,
29
using innovative measures to improve the chances of women securing land tenure. The
project looked for ways to allocate land rights to women that would be readily
acceptable in the society; sought to develop approaches to allocating land that would
encourage, but not force, inclusion of women; and looked for multiple avenues for
allocating land rights to women so that if one failed, others would be available. The
GRAF case from Burkina Faso, meanwhile, demonstrates the importance of local
dialogues on women's rights. Similarly, a Landesa study of CRS gender approaches to
agriculture in Burkina Faso highlighted the need to clarify women's rights to land at the
community level through participatory dialogues75. These types of dialogue- driven
approaches should guide any proposed intervention in the Sahel Region, where the
strong influence of culture and tradition makes this especially challenging.
The 1998 Land Act has provisions that have potential impact with regard to gender
equity in land rights. Section 40 requires that before any transaction takes place
regarding land on which a family lives and/or provides its subsistence, the spouse and
adult dependent children should be consulted. The Land Act, in accordance with the
1995 Constitution, also stipulates76 that any customary practices that deny women or
children use of land are null and void.
The local Land Committees set up in each parish are to ensure that these provisions are
carried out and that vulnerable groups are protected. What was perhaps the most
disappointing event with regard to gender rights in the new Land Law was the concept
of co-ownership of marital property. During the drafting of the law, the concept of co
ownership of property acquired during marriage was introduced, hotly debated, and
finally approved. The article on co-ownership, however, was dropped from the bill
during the final voting process by mis-use of a parliamentary procedure77• Other
provisions in the Land Act would appear to discriminate against women and other
holders of secondary land rights.
75Jones-Casey, 2011 76Section 28 77Matembe 2002
30
In Section 2378, the family is considered the legal owner of customary land and is
represented by the head of the family. Since in most cases, the family head is a man,
men have been given the legal power to make all transactions with respect to family
land, including the option of converting it to freehold, making this person the owner of
the property. Unfortunately, the law did not provide that all family members be written
in any transaction on customary land.
2.4 Conclusion
This chapter reviewed literature and laws concerning land administration, management
and registration in regard to women and children rights in several countries, it
investigated the policies and laws in Europe, West and East Africa assessing how the
law on land registration is insured with the women and children's rights. Allocating plots
to women's associations for small-scale livelihood projects, building awareness of the
importance of improving women's rights to land through local dialogues, encouraging
joint titling of household land, and strengthening systems for securing land titles for
women are good examples of these approaches.
78 Land Act, 1998
31
CHAPTER THREE
THE LAWS, POLICIES AND INSTITUTIONAL FRAMEWORK ON LAND AND
HUMAN RIGHTS IN UGANDA
3.0 Introduction
Uganda's formal land tenure system was initially established by the British during that
country's colonial era. Since independence (1962), Uganda has reformed its formal
legislation regarding property rights several times. The most recent is the 1998 Land
Act. In addition to modifications in formal law, other processes have influenced land
tenure systems, and consequently land markets, in Uganda: increasing population
density and commercial agriculture.
3.1 Titling and Registration under Ugandan law
Another major effort at privatizing land rights occurred in the late 1950s and 1960s. In
1955, the East Africa Royal Commission issued the Land Tenure Proposals
recommending, among other proposals, that land ownership be privatized and
individualized and that land market transactions be facilitated79. As a result of these
recommendations, a pilot land titling and registration program was initiated in Uganda
in the Kigezi District in 195880• Land titling and registration was implemented in a
number of districts like Mukono, Kampala, Kabale, among others. Because of
administrative problems and disruptions brought about by the onset of independence,
the program was not extended to the entire country.
79 Supra 8°Critchley, Will. "Harnessing traditional knowledge for better land husbandry in Kabale District, Uganda." (In: Mountain research and development, 19:2, 1999, p. 261-272)
32
3.2 Independence and State Ownership of Land through Land Registration
The Land Reform Decree of 1975 declared that all land belonging to the state,
abolishing all other ownership rights including mailo, and repealing previous legislation,
including legislation that protected kibanja tenants. Individuals occupying land, whether
under customary or mailo tenure, could obtain long-term leases. Some major changes
included no restriction on rents and greater flexibility for landowners to evict tenants.
Some tenants banded together and successfully resisted the most abusive practices on
the part of landowners (Opyene 1993). Rental arrangements in other parts of Uganda,
such as in Bunyoro and Lango, are similar to the arrangements on mailo land in that
tenants pay rents or have sharecropping arrangements with owners of relatively large
estates. A tenure structure to codify the rights that persons had to land under the new
ownership model was never fully implemented, and mailo owners and tenants
continued to operate in the semi-customary arrangements they were practicing
previous to 1975. In the mid-1980s, Uganda realized that a new land law was needed
to clarify and protect land rights. USAID supported research on de facto tenure systems
and practices and provided assistance to policy makers interested in reforming land
legislation. The next section wil l focus on land tenure systems and land markets in
Uganda by synthesizing results from studies undertaken during the 1980s and 1990s.
Many of these studies were supported by USAID.
3.3 Privatization and Land Markets in Uganda
The land tenure situation in contemporary Uganda, as can be concluded from the
previous section, is a mixture of customary (called kibanja), freehold, leasehold, and
mailo tenure systems. While most of the country operates under customary tenure
(some scholars estimate 75%3), studies have demonstrated that two features of the
land market are operative in most of Uganda : individualization of land rights and land
transactions. Central Uganda has the most active land market in the country. For that
reason, a number of studies that examine land market operations and characteristics
have been undertaken in that region.
33
One of the features of Uganda's land market is that while land transactions between
individuals are common, these transactions take into account certain customary rules.
This is particularly true of rural and agricultural land. In other words, the buyer and
seller are enter into a land transaction with the support and consent of their
surrounding community. This acknowledgement of the social relations by buyer and
seller is recognition that not only social endeavors but also economic ones are
dependent on collaborative ties with support groups, be they a lineage, clan,
community, or agricultural association81.
The studies cited in this Country Brief provide valuable information on: (1) the types of
rights that landholders on mailo and customary land enjoy, including transfer rights, (2)
the effect of privatization and land market activities on equity; (3) the effects of the
titling and registration efforts of the late 1950s; ( 4) the impact of privatization in
pastoralist areas; and (5) the impact of individualized property on tree coverage82.
3.4 Contemporary Customary Tenure
Customary tenure in Uganda has persisted for a long time despite its neglect by the
legal regime. In contemporary Uganda, rights to control, use and ownership of
customary land are derived from being a member of a given community and are
retained by fulfilling certain obligations in the community. These systems of land
allocation and land transactions are important in determining equity, land
administration, and dispute resolution mechanisms within customary tenure
communities. Two general customary systems can be distinguished83.
Under the communal land system, primarily found in northern Uganda, the household is
the primary owner of the land and may include extended members of the family.
81 Lora. Case study, Uganda: linking food security and nutrition. Madison, Wis.: BASIS, Broadening Access and Strengthening Input Market Systems, 1998. Computer data (1 file: 92KB displays as 33 p.). http: I jwww. wisc.ed u/ltc/live/bashorn9804c. pdf
82 Ibid 83Kasfir, Nelson. Land and peasants in western Uganda: Bushenyi and Mbarara districts. [London: James Currey, Ltd., 1988]. p. 158-175.
34
Communal land in Uganda includes gardens and pastures, grazing areas, burial grounds
and hunting areas commonly known as common property regimes. The common
property regime is especially utilized by the pastoralist communities in northern Uganda
and parts of the cattle corridor in the West. User rights are guaranteed for farming and
seasonal grazing, access to water, pasture, burial grounds, firewood gathering, and
other community activities. No specific ownership rights of control are conferred on
users. Control and ownership are through the family, clan, or community. Under
individual/family or clan customary tenure, emphasis is also placed on use rather than
on ownership84.
In many places in Uganda customary land has tended to become more individualized
and though not initially acceptable, incidents of sale are very high. In many ethnic
groups, before a sale is made clan members and family have to be consulted. However
the institution of customary land is weakening in many places, people are poorer, and
sales, mostly distress sales, have increased85.
3.5 The Constitution of the Republic of Uganda, 1995
The Constitution under Article 23786 provides for various rights, the most important is
the vesting of land with citizens themselves in accordance with the recognized tenure
systems that were abolished by the 1995 Land Reform Decree which includes, Mailo,
Freehold, Leasehold and Native Customary tenure systems. However the re-introduced
of tenure systems created competing land rights for example bona fide and lawful
occupants.87 Also under the Constitution Para xxvii88 a Public Trust Doctrine is created
over specified important renewable natural resources such as natural lakes, rivers,
wetlands, forest reserves, game reserves and national parks, vesting them in the State
to hold and protect for the common good of all citizens of Uganda.
84 Ibid 85 Supra 86
1995 constitut ion of Uganda 87
Art. 237(8) 1995 constitution of Uganda 88
National objectives and directives prin ciples of state policy of the 1995 constitution of Uganda
35
Legally, these natural resources moved from the absolute ownership of the government
to the public realm, under a constitutionally brokered fiduciary relationship between the
State and the citizens of Uganda89 and under Article 237(8) reorganizes the lawful and
bonafide occupants and landlords, Article 237(4) allows a customary tenant to be issued
with certificate of title against his or her occupancy and again has a choice to apply to
convert his interest into Freehold tenure provided if s done in accordance with the law.
And because of Articles 238, 243, a number of institutions are being created, Land
tribunals and land boards. Article245, of the Uganda Constitution, endow the State and
Government with power to suppress or limit undesirable land use in the interest of
public welfare and/or orderly development without revoking ownership interests or
rights.
3.6 The Registration of Titles Act
This Act automatically applies to all Mailo land included in any final Mailo certificate and
all Lands alienated in Freehold or Leasehold and any transaction relating to such land90 .
Customary land tenure is not registrable under the Act9\ owners of land under
Customary tenure who wish to bring their land under the Act must convert their tenure
to freehold as provided under the Land Act. s.115 of the Registration of Titles Act
expressly provides that a Mortgage created under the Act takes effect as a security over
the Mortgaged land 'but shall not operate as a transfer of the land thereby Mortgaged
'meaning, does not transfer ownership of the land to the to the Mortgagee, it creates
in the Mortgagee's favor a separate and distinct interest in the Mortgaged land.
89Course on land rights and land value capture ,By Earth Rights Institute, page 16
90 Section 9(1), RTA Cap 205 91
Certificates of customary ownership of land are 'recorded' by a recorder established under s.69 of the Land Act cap 227
36
3.7 The land Act
The 1998 Land Act provides the administrative legislation to put into practice the land
provisions of the 1995 Constitution (Uganda 1998). Simon (2000)92 maintains that three
principles guided the formulation of the 1998 Land Act:
A good land tenure system should support agricultural development through the
function of land market that permits those who have rights in land to voluntarily sell
their land and for progressive framers to gain access to land.
A good land tenure system should not force people off the land, particularly those who
have no other way to earn a reasonable living or to survive. The land tenure system
should protect people's rights in land so they are not forced off the land before there
are jobs available in the non-agricultural sector of the economy.
A good land tenure system should be uniform throughout the country. With regard to
customary tenure, the Land Act specifies that any person, family, or community holding
land under customary tenure on former public land may acquire a certificate of
customary ownership for that land. These certificates may be leased, mortgaged, and
pledged in those communities that permit these practices. In addition, holders of
customary ownership who want to use their land as a group can establish a common
land association to manage and protect their interests in the communalland93•
In this way, communities that wish to continue to practice customary tenure, including
pastoralist communities, are given legal recognition and are provided with the legal
mechanism to do so. While the Constitution and the Land Act recognize customary
tenure, it would appear that the objective of policy makers and legislators was to also
facilitate individualization of land rights and the functioning of land markets. In this
vein, the Land Act provides for the conversion of customary tenure land into freehold.
This can be done in either of two ways: the person, family or community holding land
under customary tenure can immediately register their land as freehold, or if they have
92Coldham, Simon. ''Land reform and customary rights: the case of Uganda. "(In: Journal of African law, 44:1, 2000, p. 65-77) 93 Ibid
37
a certificate of customary ownership, that certificate can later be converted into
freehold tenure.
This was enacted to put in practice the provisions of the 1995 constitution pertaining
land and with a view of providing security of tenure on land, It provides a clear view on
who is a Lawful and Bonafide occupants94 and explains in details the tenure systems. S,
32(9) declares that the security of tenure of a Lawful or Bonafide occupants is not
prejudiced by an individual's lack of a certificate of occupancy, meaning that the
security of occupants exists with or without the formality of certificates. Under s.2.
Provides for Land ownership, that wheresubject to article 237 of the Constitution, all
land in Uganda shall vest in theCitizens of Uganda and shall be owned in accordance
with the following land tenure systems, customary; freehold; Mailo; and leasehold. Both
the Constitution and Land Act of 1998 recognize customary tenure, but the Act makes
an important exception in relation to the rights of women, children, and persons with
disabilities. s.27 provides, "Any Decision taken in respect of land held under
customary tenure, whether in respect of land held individually or communally shall be
in accordance with the customs, traditions and practices of the community concerned,
except that a decision which denies women or children or persons with a disability
access to ownership, occupation or use of any land or imposes conditions which violate
articles 33, 34 and 35 of the Constitution on any ownership, occupation or use of
any land shall be null and void" . Section 39(1) (i) of the Land Act provides that no
person shall sell, exchange, transfer, pledge, Mortgage or lease any land, "on which the
person ordinarily resides with his or her spouse and from which they derive their
sustenance, except with the prior written consent of the spouse." The "consent clause"
is designed to protect the rights of family members from abuse of trusteeship at sale.
As a result, the sale of land by a husband without the written consent of his wife is
legally invalid. S 4 provides for acquisition of Certificate of customary ownership. That
(1) Any person, family or community holding land under customarytenure on former
public land may acquire a certificate of customaryownership in respect of that land in
94 S. 9 Land Act cap 227, Laws of Uganda
38
accordance with this Act.(2) A certificate for customary ownership shall be in the
prescribedform and shall be issued by the board. (3) An application for a certificate of
customary ownership shall be in the prescribed form and shall be submitted, together
with the prescribedfee, to the committee of the parish in which the land the subject of
the application is situated.95
3.8 Succession Act (Amendment) Decree of 1972
This sets out the persons eligible for inheritance and their respective share
entitlements. Section 27, provides that a widow acquires only 15% of the estate; the
children (including her husband's children out of wedlock) receive 75%, the legal heir
1% and the range of other dependants 9%. The nearest lineal relative, generally the
eldest son, has the power of administration and inherits the primary residence,
although the widow retains a right of occupancy, including the right to cultivate any
normally farmed land adjoining the residential holding. This right of occupancy is
limited, however, and terminates upon remarriage, 6-months continuous absence from
the premises, the availability of "suitable alternative accommodation," and if
the premise is not kept in good repair or the normally farmed land is not cultivated. In
April 2007, the Constitutional Court declared unconstitutional Section 27 and Rule S(a)
of the Second Schedule that provides for a widow's right of occupancy only until she
remarries96. The law, however, has yet to be amended by Parliament, thereby denying
widows an opportunity to defend their land rights through legal channels.
3.9 The Mortgage Act Cap 229
On matters of land, under s.7(1) A Mortgagee may, for the purposes of the realization
of his or hersecurity in the Mortgage, enter into possession of the Mortgaged land
aftergiving at least sixty days' notice of his or her intention to do so to themortgagor.s.7
(2) the right of possession by the Mortgagee under this section shallbe against the
mortgagor and any person deriving an interest in theMortgaged land through the
95The Land Act Cap 227 of Uganda "succession Act (Amendment) Decree of 1972
39
mortgagor where that interest is subsequent tothat of the Mortgagee. s.7 (3) A
Mortgagee in possession shall be liable to account to themortgagor for any income,
whether in cash or in kind, derived from the Mortgaged land which he or she has
received or without willful default might have received from the time of entering into
possession, and to pay over to the mortgagor or to any subsequent encumbrancer of
whom he or she has had notice the excess on the amounts due under the Mortgage.
3.10 land Acquisition Act Cap 226
Section 2, Provides for power to enter on and examine land. (1) In order to ascertain
the suitability of any land for a publicpurpose, any person authorized by the Minister
may enter upon the landand, survey the land; dig or bore into the subsoil and remove
samples; and do any other thing necessary for ascertaining its suitability forthat
purpose.(2) The Government shall pay compensation to any person whosuffers damage
as a result of the exercise of the powers conferred bysubsection (1). Section 3. Provides
for declaration that land is needed for public purpose.(1) Whenever the Minister is
satisfied that any land is required by the Government for a public purpose, he or she
may, by statutory instrument, make a declaration to that effect.(2) An instrument made
under subsection (1) shall specify; the location of the land to which it relates; the
approximate area of the land; and; if a plan of the land has been made, a place and
time at which the plan may be inspected97•
3.11 Conclusion
The 1998 Land Act has provisions that have potential impact with regard to gender
equity in land rights. Section 40 requires that before any transaction takes place
regarding land on which a family lives and/or provides its subsistence, the spouse and
adult dependent children should be consulted. The Land Act98, in accordance with the
1995 Constitutionalso stipulates that any customary practices that deny women or
children use of land are null and void. The local Land Committees set up in each parish
97Land acquisition Act Cap 226 98 Section 28
40
are to ensure that these provisions are carried out and that vulnerable groups are
protected.
What was perhaps the most disappointing event with regard to gender rights in the
new Land Law was the concept of co-ownership of marital property. During the drafting
of the law, the concept of co-ownership of property acquired during marriage was
introduced, hotly debated, and finally approved. The article on co-ownership, however,
was dropped from the bill during the final voting process by mis-use of a parliamentary
procedure. Other provisions in the Land Act would appear to discriminate against
women and other holders of secondary land rights.
In Section 2399, the family is considered the legal owner of customary land and is
represented by the head of the family. Since in most cases, the family head is a man,
men have been given the legal power to make all transactions with respect to family
land, including the option of converting it to freehold, making this person the owner of
the property. Unfortunately, the law did not provide that all family members be written
in any transaction on customary land.
99 Land Act of Uganda
41
CHAPTER FOUR
CHALLENGES AFFECTING LAND RIGHTS OF CHILDREN AND WOMEN IN
UGANDA
4.1 Obstacles to enjoyment of land rights
According to the Beijing Platform for Action, land is one of the important things for
children and women's livelihood and has an important link between women's poverty
and homelessness, inadequate housing, and lack of access to economic resources such
as credit, land ownership and inheritance.10° Further, efforts have been made by the UN
Commission on Human Rights to, among other things; urge States, including Uganda,
to design and revise laws to ensure that women are accorded full and equal right to
own land and other property, and the right to adequate housing; which includes the
right to inheritance. 101
4.2 Ignorance of rights by women and children
Women's and children's ignorance of their land rights has a role to play in their
continued discrimination in the accessing and enjoyment of land rights. The Uganda
Constitution categorically states that all persons are equal before the law in all spheres
including social and cultural life. However, historically, women's access to land has been
based on their status within the family; and it involves their right to use the land rather
than actual ownership. 102 Children, on the other hand have been subject to their
mothers or guardians as the law generally does not acknowledge their ability to hold
property on their own. 103
100 Beijing Platform for Action (n 26 above) paras 47, 51 and 156. 101Commission on Human Rights Resolution 2000/13.Women's equal ownership of, access to and control over land and the equal rights to own property and to adequate housing (2000) sec 5. 102Iruonagbe (n 13 above) 2607. 103 According to Sec 27 of the Administrator General's Act cap 157, court may appoint a father, mother of other suitable person to receive the share of a minor under a will or distribution of an estate.
42
According to case studies conducted104, relatives of orphans grab their land and
property in rural areas; while in urban locations, orphans are more likely to suffer from
losing private tenure plots. 105 In light of the foregoing women and children do not know
their rights, let alone which fore to turn to for redress. For instance, women and
children are ignorant of which courts have jurisdiction over land matters and the
possible available remedies. Access to such information would protect women and
children from ignorance and abuse of their land rights, as well as empower them to
claim for and fully realize their rights.
4.3. Weak institutions
Several institutions have been created to ensure protection of women's and children's
rights for instance, the judicial system was created in a bid to give life to laws that aim
at guaranteeing women's and children's right to access and enjoy land rights. However,
despite efforts to have an effective and efficient system, the judiciary is plagued by its
own problems and is, therefore, unable to extend its services closer to those it was
intended to benefit. Issues such as distance of the courts as well as case backlog
cripple its ability to perform. It is estimated that the judiciary has a case backlog of
about 40000.106
As observed by the current Parliamentary Public Accounts Committee (PAC) Chairman,
NandalaMafabi, the backlog of cases pending in court are due to lack of human
resource and the cases will continue to upsurge if the current judicial system is not
restructured. 107 This shows that the courts which are the main institution created to
breathe life into laws and offer protection to women and children, whose land rights are
being threatened and abused, are in fact impotent.
104 Commission of Inquiry into Land Matters, (New Vision Publication, May 2018) 105 LL Rose 'Children's property and inheritance rights and their livelihoods: The context of HIV and AIDS in Southern and East Africa' LSP Working Paper 39 (2006) 5. 106ANWandera 'Case backlog blamed on lazy judicial officers' http://www.monitor.eo.ug/News/National//688334/915282/- /wykvu6/-/index.html (accessed on 8 September 2010). 107Y Mugerwa 'Legislators approve Judiciary overhaul' http://www.monitor.eo.ug/News/National//688334/998216/- /x4kas4/-/index.html (accessed on 8 September).
43
In the current case of the Busanja residents in Wakiso District, the said owner of the
land made evictions in accordance to the ruling of the court. When the residents made
an outcry to the president and the Commission of Inquiry into Land Matters, the
judgment was overturned by the Courts of Law108. This can all be attributed to poor or
weak institutional stand on land matters in Uganda.
4.4 Prevailing customs and practices on women and children rights on land
Custom is a very powerful force that has a deep bearing on women and children's
access to land. According to Tuyizere, cultural practices in most parts of Uganda hold
women not as equal partners to their counterparts, but as subordinates. 109 As such,
traditionally, they are expected to fulfill the roles of mothers, housewives, family
workers and agricultural laborersY0 Given that custom is deeply entrenched in most of
Ugandan society today, irrespective of what the legal provisions are, it is customary
practices that determine whether a woman or child will actually have access to land. In
light of this, even if the law provides for women's or children's ownership of land,
customary practices may prevent the claim over any such right.
Much as ownership of land is statutorily allowed, she may be discouraged from
asserting this right. 111 An unmarried woman may use her family's land (usually held in
her father's name) but may claim no permanent use or ownership rights to the land.112
The same applies to children as in the African setting, they do not have a voice. Upon
divorce or death of their husbands, women can be denied property rights in their land
and homesY3
Further, the concept of co-ownership of land is not recognized under customary law.
This means that on the loss of a spouse or dissolution of marriage, land held under
108 The Daily Monitor, 251h/February, 2019 109 AP Tuyizere Gender and Development: The Role of religion and Culture in Iruonagbe (n 13 above) 2610. 11~uyizere in Iruonagbe (n 13 above) 2610. 111 R Rebouche 'Labor, Land, and Women's Rights in Africa: Challenges for the New Protocol on the Rights of Women' Vol. 19 Harvard Human Rights Journal (2006) 244. 112Rebouche (n 36 above) 244. 113Rebouche (n 36 above) 244.
44
customary tenure reverts back to the clan while those under other tenures will be
claimed by relatives. Such customary practices are, however, void, as they are contrary
to article 2(2) of the Uganda Constitution which upholds the Constitution as the
supreme Jaw of the land. As such, any custom that is inconsistent with the Constitution
is void to the extent of the inconsistency.
4.5 Corruption
Corruption is a challenge that plagues almost every institution in Uganda including the
Ministry of Lands, Housing and Urban Development under whose ambit land matters
fall. According to Transparency International, Uganda is ranked among the countries
most affected by bribes and scores the third-highest among 69 countries in Asia,
America, the Middle East, Europe and Africa that were sampled. 114 It is as a result of
corruption that women and children are further rendered helpless when it comes to
claiming titled land.
As observed by the President of the Republic of Uganda, the Land Registry officials in
the Lands Ministry are accused of fleecing people to process their land titles and in
other instances have been known to issue false titles after getting bribes.115 By the time
the fraud is realised, it is often too late for an individual to reclaim their land as it
involves a long and tedious court process, Jet alone an expensive process116•
4.6 Low literacy levels
Low literacy levelis another factor that hampers the ability of individuals to fully realize
their rights to land. With no idea on land rights, it is impossible for anyone to effectively
follow up on land disputes as well as change of ownership in case of inheritance.
Illiteracy and low levels of education limit the ability of women to push for access to
114 Vision reporter 'Uganda 3rd most corrupt report' accessed from http://www.newvision.co.ug/D/8/13/683669 (accessed 1 September 2010). 115ANWandera 'Museveni tells cultural leaders to keep off land disputes' accessed from http://www .monitor.co. ug/News/Nationalf-/688334/925836/-/xO?kbw/ -/index. html (accessed on 8 September). 116 The Busanja Saga (Daily Monitor, 251
h February, 2019
45
and actual enjoyment of their land rights as well their children's. Literacy is necessary
for one to be able to understand land rights as well as how the judicial system can be
used to protect the same.
Unfortunately, most women live in rural areas and have not advanced in education. It
is estimated that about half of the women in sub-Saharan Africa are illiterate. This
alone, undermines any attempts of pushing for realization of women's rights to land in
rural areas. To make matters worse, culture is deeply engrained in women's minds that
they would find it difficult to try and change the status quo.
4. 7 Conclusion
The 1995 Constitution and the Land Act in an attempt to address the conflicts on land
restored the Mailo and Freehold tenure systems and also declared that land would
henceforth belong to the citizens of Uganda in accordance with customary, freehold,
mailo, and leasehold tenure systems117. However given the nature of land disputes in
Uganda, reform is needed to move forward and develop a land tenure system that
works for the Country. Examples of different models from other countries, like
Dynamics of Dual Meanings in Uganda's Land Tenure.Uganda's land policies are in need
for revision to mitigate conflict and food insecurity; this should be done by
strengthening the traditional African sense of land ownership. Also there should be
continual assessment of land related programs, sensitization of local communities about
land management related b-laws, clear identification of roles for leaders at the district
level, and the rationalization of certain issues in the land act should be undertaken to
facilitate implementation or reforms118
117 Article 23(3) of the 1995 constitution and s.2 of the land Act, cap 227 118Conflict in Uganda' s Land Tenure System,NorahOwaraga 5, 14, 201 2 page 5
46
CHAPTER FIVE
CONCLUSIONS AND RECOMMENDATIONS
5.0 Introduction
The debate regarding land registration and its impact on women and children rights in
central Uganda during the 20th century not only centered on conflicts between mailo
owners and tenants. There has also been tension between freehold (individualized)
ownership and customary tenure. Clan and lineage leaders have retained some
authority over property rights even as individualization of land rights and the land
market develop, such as approving land rentals and sales as well as inheritances. This
chapter therefore concludes and recommends to the various stakeholders.
5.1 Conclusion
This finding suggests that customary tenure systems have been responding to and
adjusting their norms and practices to accommodate changes such as increasing
population density and development of commercial agriculture. What is interesting is
that some customary practices continue in even in freehold areas. In part, this appears
to respond to the need to provide access to some land and/or resources to all who need
it. It also would seem to reflect the reality that even commercial activities need the
assistance of others to be successful. A number of commonalities were found across the
different studies cited in this brief. Perhaps the most interesting one is that significant
differences in agricultural productivity were not found between tenure systems: nearly
all farmers employ low-input farming systems. The use of purchased inputs and long
term investments is very low across geographic regions and (customary, mailo,
leasehold, and freehold) tenure systems. Although one could argue that tenure rights
are ambiguous in Uganda because of changing legislation and overlapping tenure
systems, the more compelling reason appears to be factor market and information
constraints: poor input markets, lack of rural credit, poor market information.
47
The public needs to be made aware of the existing land laws and how best they can
form a basis for their effective use of land within the legal boundaries. Women in rural
areas are not aware of the laws that grant them rights to land ownership. This lack of
information hinders women from enjoying their rights. The Uganda land law offers
protection to women on paper but many of them have not benefited from the policies.
Women in rural areas are still at the mercy of traditional legal systems that look to men
as sole owners of property including land119
5.2 Recommendations
The research willed the following recommendations
To the government
There is need for Land reforms, in this sense, refer to transfer of ownership from
the more powerful to the less powerful, such as from a relatively small number of
wealthy owners with extensive land holding to individual ownership by those who work
the land. Such transfers of ownership may be with or without compensation which may
vary from token amounts to the full value of the land. The common characteristic of all
land reforms however is modification or replacement of existing institutional
arrangements governing possession and use of land. Thus, while land reform may be
radical in nature, such as regulatory reforms aimed at improving land administration.
Nonetheless, any revision or reform of a Country's land laws can still be an intensely
political process, as reforming land policies serves to change relationship within and
between communities, as well as between communities and state
The need for regional and international policy framework, Uganda is expected
to demonstrate international conventions and regional agreements were is a signatory
that have a direct relevance to land, through national legislation to ensure the
119New vision November 4th 2010 page 9
48
commitments are implemented at national level, because there is a lot of laxity in
domestication international conventions into law in Uganda.
To the stakeholders
Ensure adequate and effective institutional coordination. The success of
implementation of the various land policies will depend on the effective co-ordination
and contributions of a wide range of institutional stakeholders including non
government organizations, and the commitment of a large range of key factors such as
efficiency of the district land boards and the Ministry of land water and environment.
This will ultimately lead to effective use of land in Uganda.
There is need to introduce technological means of registering titles to avoid
bureaucracies that render the whole system ineffective and dormant .By introducing
technological measures, land related issues will be dealt with fast hence efficiency. This
will lead to effective management of land use in Uganda.
There is need to liberalize the land tenure and to facilitate the creation of
markets in land120• This is because land does more than simply provide a shelter and
means of livelihood; it is also to be understood as a main vehicle for investing and
accumulating wealth and transferring it between generations. Land which is unused
because it has not been brought into the legal system by registration and titling is
described as a dead asset. Effective use of land will only be realized with the
liberalization of the dead asset.
There is need for a clear and comprehensive National Land Policy to guide the
provisions in the land law, streamline the objectives and guard against contradictions
and inconsistencies that cannot be under estimated. A Comprehensive National Land
Policy has to be put in place and very clear to the public, the policy should address all
the multiple, economic, social, ecological, cultural and political functions attributed to
land tenures, with the understanding that they are to be performed in a sustainable
'"'The politics of land reform in Africa page 1
49
and equitable manner and that there should be a harmony among them. There should
be a clear cut distinction between bona fide and lawful occupants with their rights
connected there to. A National Land Policy is essential for the sustainable management
of land resources, since it is known that the majority of Ugandans are dependent on
land for employment and survival.
It is crucial for an integrated and effective system responding to a wide variety of intra
sectorial variables between the land sector and other productive sectors in the
economy. Without a Comprehensive Policy, it is a challenge to confront the fact that
land is a factor of production influenced by and interacting with socio-cultural processes
as well as macro-level policy processes and strategies, whose strategic management is
important for significant and sustainable economic growth and social transformation.
The policy would also guide in the prioritization of objectives of the Land Act as well as
their implementation. This would lead to better and effective land use in Uganda.
To the pubic
There is need to ensure acceptance of the law by the public. The Land Act has
been recently amended by the Land Act Amendment of 2010. This Amendment was
received with suspicion, apathy, fear and outright rejection in some areas of the
country. This was more evident in Buganda where the majority saw this as utter
disregard of their right to property since now the lawful and bonafide occupants can
only be evicted after a court order121. The majority of Mailo owners are not happy about
the new status given to the bonafide occupants by the law. It is likely that some groups
of primary stakeholders whose interests are threatened by the legislation may try to
overturn the legislation or parts of it, by tabling amendments in parliament, recourse to
the Constitutional Court, or by causing civil disturbances. Ensuring acceptance of the
law through articulating its substantial importance and bringing out the intention of the
draftsperson well will help harmonize the situation thus leading to effective use of land
in our contemporary Uganda.
121Section 32A(l) Land Amendment Act 2010
so
There is need for a well-paid, motivated and transparent civil service. This will
be a tool to fight corruption that has beleaguered our land policy implementing
institutions. The successful implementation requires a well-paid, motivated and
transparent civil service. Currently the personnel lack tools and a living wage which
factors seriously erode the capacity to deliver efficient services. After putting in place a
well-paid, motivated and transparent civil service this will improve the output of the
various stake holders in land related matters thus leading to effective management of
land use in Uganda.
There is need to create a uniform tenure system that secures tenure rights of
individuals this is because at the moment, Ugandans find it hard to use what they have
to the best advantage because they lack secure property rights .Very few can prove
that they own their land because they don't have title deeds. This is important because
without a reliable system for ascertaining who owns what, land cannot be used as
collateral. And the best tenure system to serve this is definitely Freehold system, which
will minimize tribalism, encourage nationalism among Ugandans and put the country on
a better footing towards sustainable economic growth122 which has to come with better
management of land since land forms the backbone of our economy.
122Land Reform in Uganda page 205
51
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