Land Rights And Chal lenges in Uganda

Overview of Land Tenure Systems in Uganda

T he 1995 Constitution of Uganda and the Land Act provide that land in Ugan-da may be held in terms of four tenure categories only. These are Custom-

ary, Freehold, Mailo and Leasehold tenure.

CUSTOMARY TENURECustomary land tenure is a system of land

relations, the incidences of which are not always capable of precise definition. These incidents often vary from community to community or even within communities. The underlying commonality in all custom-ary law systems is that rights are derived by reason of membership in a community and are retained as a result of performance of reciprocal obligations in that community. It is thus defined in terms of its territoriality or clan nature, existence of rules governing community, family, or individual access to land, and perpetual ownership of land and resources.

The Constitution and the Land Act restored the status of customary land tenure by rec-ognizing it as one of the four tenure regimes. The Land Act enumerates the incidents of customary tenure and it also provides that customary tenure may be converted to freehold.

MAILO TENURE Mailo is subject to the rights of occupiers

or kibanja holders. Both separate the owner-ship of land from occupancy or ownership of developments by lawful or bonafide oc-cupants and this is guaranteed by the Land Act 1998. The kibanja holder has option to purchase and, thus, move up to the Mailo title status. The Land Act also guarantees statutory protection to the kibanja holder and his or her successors against any evic-tion as long as the prescribed nominal ground rent is paid to the land owner.

FREEHOLD TENUREAbout five percent of households in

Uganda hold land under this tenure. The incidents of freehold tenure, which are basi-

cally standard, include the conferment of a full power of disposition, and compulsory registration of title in perpetuity.

LEASEHOLD TENURELeasehold involves the derivation and

enjoyment of land rights from a superior title in exchange for conditions, including but not limited to, the payment of rent. The 1995 Constitution (under Article 237 (5)) pro-vides that any lease, which was granted to a Ugandan citizen out of former public land, may be converted into freehold.

THE LEGAL FRAMEWORK OF LAND ADMINISTRATION

Uganda’s legal framework for land ad-ministration has undergone reforms in the recent past and consists of a number of legal acts. Some of these legal acts are outdated and require harmonization after the approv-al by Cabinet of the National Land Policy on Feb. 7, 2013.

The land administration system of Ugan-da is however based on a number of laws which include:1. The Constitution of the Republic of Uganda2. Land Act 1998 as amended in 2004 and 2010 (CAP227)3. The Condominium Property Act 20014. Land Regulations, 20045. The Survey Act, Cap. 232, 1970

6. The Land Acquisition Act, Cap.226, 19627. Registration of Titles Act, Cap.2308. The Mortgage Act, Cap. 229

LAND REGISTRATION IN UGANDAA land title or Certificate of Customary

Ownership is very important because it is the only legal and conclusive evidence you have of ownership. It also contributes to tenure security because you can be sure that you cannot be evicted. It avoids land dis-putes and is required by banks to give you loan facilities. It is also essential for one to have updated title or certificate record other than keeping it in the names of the dead.

Land owners should on a regular basis go to the Ministry Zonal Offices to check the status of their land. The development and implementation of the new Land Informa-tion System strengthens the decentralized land administration system. Before the in-troduction of the Land Information System, people had to go to Kampala which cost a lot of time and money. Thanks to the Zonal offices, services have been taken closer to the people.

The Ugandan land registration system is modeled on the Torrens system originally developed by Sir Robert Torrens and first im-plemented in South Australia. In Uganda’s Torrens-type registration system, the State maintains Certificates of Title which has registered information regarding ownership

Hon. Daudi Migereko, Minister of Lands, Housing and Urban Development.

Hon. Idah Nantaba, State Minister for Lands.

Land Rights & Chal lenges in Uganda

and other legal interests affecting land. According to Ugandan law, the Certificate

of Title is deemed to be conclusive evidence that the person named in the Certificate as the owner of the land is the owner, and that any person named as having any other interest in the land possesses such interest. The State in effect guarantees the accuracy of the information on the Certificate of Title so that anyone dealing in land may rely on the accuracy of title information.

Each time there is a transaction that changes the ownership or other rights to a plot, the legal instrument (such as a purchase and sale agreement, lease or mort-gage) that accomplishes the change is sub-mitted to the office of Titles, and the appro-priate change is registered on the Certificate of Title. The Titles Office retains instruments in addition to retaining the Registry Copy.

Efforts have been made to computerize the land records with a view of making the registration process simplified, keep it updated and to inculcate an element of transparency in land market to foster a conducive environment for safer and more efficient investment in land.

Benefits of Computerizing the Land Registration process

�� The system is more responsive to the needs and demands of the citizens and business clients;�� Computerization prevents, reduces or

eliminates backdoor transactions, forger-ies and graft;�� There is more efficient and speedy

registration of transactions; �� The problems of missing land records

has been eliminated; �� There is a decrease in the cost and

space required for storing land records;�� There is a simplification of the prepa-

ration of disaster copies;�� There is a faster resolution of land

disputes;�� There will be online access to the in-

formation in the Registry with reduced interfacing with the public which dis-courages soliciting for unofficial fees;�� The problems which are experienced

under the manual system no longer hap-pen. These include multiple allocations of plots; forgeries and altering of land documents; unauthorized involvement in land allocation; land use abuses; en-

croachments on roads and road reserves; wrong and overlapping surveys; inef-ficient revenue generation and loss of revenue; rampant subdivisions, amend-ments and falsification survey informa-tion on land titles.�� There is already a reduction in time

and cost involved in land transactions;�� The system provides built in security

measures for ensuring accuracy, reliabil-ity of registry record and ensure integrity of land records;�� There is easier identification and pre-

vention of fraud and illegal transaction;�� The system facilitates search and

verification of title in the shortest pos-sible time;�� The system also facilitates monitor-

ing and analysis of market and rental values of land and property; and�� The system will in the near future

provide special online access to Courts, Banks and mortgage finance institutions.

Land within the context of Gender and Development

Land rights of women and other margin-alized groups are a key development issue and are very crucial in the Government’s strategy to fight poverty. Without secure rights to land women’s ability and incen-tive to participate in income expanding economic activities is impaired, since, for

example, they are not able to control the income from farming activities and make decisions on land use.

Five critical issues comprise the gender issues in the land sector: �� The nature of women’s land rights;�� The position of women regarding ac-

cess to and control of land;�� The consequences of gender inequal-

ity relating to productive and optimal land use;�� The limited and non-effective conflict

resolution for women; and��Women’s participation in the land

administration institutions.Women gain access to land and control

to land through inheritance; access by virtue of membership within a family; and through renting or outright purchase. In most cases, family land is handed over by several generations through the male lineage. As a result, of this practice, the sons deem their right to family land as auto-matic while daughters are not eligible. Al-though Ugandan laws are quite clear about women being as free as men to own and dispose of property, including land, in prac-tice women have not effectively accessed the land market.

Therefore, equitable distribution of land and gender equality in land access, control and ownership are prerequisites to agricul-tural modernization. Without commitment to improving women and youth’s ability

LIS

GUARANTEE OF OWNERSHIP & SECURITY OF TENURE

IMPROVE OPPORTUNITIES TO IMPLEMENT LAND REFORMS

LOWER TRANSACTION COSTS ON THE REAL PROPERTY MARKET

LOWER TRANSACTION COSTS ON THE REAL PROPERTY MARKET

CHEAPER INFORMATION FOR ADMINISTRATION

IMPROVE URBAN PLANNING & INFRASTRUCTURE DEVELOPMENT FOR SUSTAINABLE DEVELOPMENT & A CLEAN ENVIRONMENT

PROTECTION OF GOVERNMENT LAND

ENHANCED ACCESS TO CREDIT

INCREASED LAND PRODUCTIVITY

REDUCE LAND DISPUTES

MORE EQUITABLE AND COST EFFECTIVE REVENUE GENERATION

Benefits of the Land Information System (LIS)

Land Rights And Chal lenges in Uganda

to access and own land, the contribution of industrialization and a modernized agricul-ture sector for wealth creation is seriously hampered.

Challenges in the Land SectorUganda like any other African country

is manifested with many land challenges, which have impeded economic develop-ment, sound environmental management, and human survival. Some of the key chal-lenges include:1. The urban areas continue to grow at a pace that considerably exceeds the average for most other parts of the world. Physical planning has not kept pace with rapid ur-banization and population increase; neither has it been pro-poor nor pro-growth, causing inadequate supply of serviced land for ur-ban activities and industries.2. The historical injustices related to land as land grievances stretch back to the colo-nial era and resulted in the disinheritance and grabbing of communities, clans and individuals customary land. These injustices arose from dispossession of land resources and require redress. 3. The incidence of land use conflicts within and across our borders is a worrying phenomenon. These conflicts are many and include human-wildlife conflicts, livestock-crop farming conflicts, competition over water conflicts, territorial and boundary conflicts, human settlement and environ-ment conflicts, mining and rural settlement conflicts, historical injustices conflicts, and Landlord - Tenant conflicts. 4. There is a problem of under utilization and under exploitation of our natural re-sources, because of use of poor technology, poor infrastructure, and lack of utilization of local and foreign knowledge. This has kept land idle and underutilized, calling for the need to sensitize these land owners to put their land to productive use.5. The Trust land management system has been abused by various actors, leading to a systematic breakdown in land administra-tion and poor delivery procedures through-out the country with manifestations of acts of corruption and unethical practices.6. The issue of unlawful land evictions, which have adversely affected the majority and most vulnerable categories of people in our communities. If left without provision of specific policy direction, it would lead to untold socio-political instability and tenure

insecurity, as the growing scarcity for land increases.

WHAT CONSTITUTES AN ILLEGAL LAND EVICTION?

An illegal land eviction is any forcible removal of a tenant, directly or indirectly, without prior court approval. Illegal evic-tion involves the threat or use of violence; a landlord’s attempt to make a land unlivable in the hope that the tenants will leave. No matter what the issue is between the tenant and landlord, as long as the Landlord does not obtain a court order, then it constitutes an illegal eviction.

WHAT THE LAND LAW ON EVICTIONS SAYSThe lawful or bonafide occupants can only

be evicted by an order of court only for fail-ure to pay ground rent.

When the lawful or bonafide occupant is in default of payment of ground rent exceeding one year, the registered owner is entitled to serve him or her a notice to show cause why the tenancy should not be terminated.

If the tenant disputes the notice, he or she may refer the matter to the court within a period of six months after the date of service of the notice by the registered owner.

Where the tenant does not challenge the notice within the prescribed period or pay the outstanding rent within a period of one year from the date of the notice, the regis-tered owner applies to Court for an order to terminate the tenancy for non-payment of rent.

Where the Court grants the registered owner an order terminating the tenancy,

it must give the tenant at least six months from the date of the order to vacate the land.

Any person who participates in illegally evicting tenants will be liable upon convic-tion to imprisonment not exceeding seven years or to a fine not exceeding 96 currency points (UGX.1, 920, 000) or both.

Advantages and benefits 1. It serves interests of both Landlords and Tenants, whose age old rights and obliga-tions are now better defined and strength-ened;2. It minimizes the conflicts and creates harmony between Landlords and Tenants and as such consolidates social order while also enabling development; 3. It protects the rights of the vulnerable Tenants, who constitute the majority popu-lation in Uganda, from untold suffering and becoming landless.

OPTIONS TO PURCHASEWhenever a tenant by occupancy wishes

to sell his or her rights of occupancy, he or she must give the first option of purchase to the registered owner.

Any tenant by occupancy who sells his or her rights of occupancy without giving the first option of purchase to the registered owner commits an offence and is liable on conviction to a fine of 1,920,000 or imprison-ment not exceeding 4 years or both and the transaction shall be invalid.

Any tenant by occupancy who does not give the first option the right to purchase op-tion shall forfeit the right over the land and the land shall revert to the registered owner.

Where the registered owner gives consent to the tenant by occupancy to sell his or her

Hon. Daudi Migereko at a land rights sensitization community meeting for residents at Jagala-Kavule in Wakiso District

Land Rights & Chal lenges in Uganda

rights of occupancy to a third party, the ten-ant by occupancy shall introduce the third party to the landlord.

The registered land owner is free to sell his/her land with or without offering the option to the tenant by occupancy. For avoidance of doubt, the new landlord can only evict the existing tenant by an Order of Court for nonpayment of rent.

Should the registered owner effect the ownership of title by sale, grant succession the interests of the tenant by occupancy, the new owner shall be obliged to respect the existing interests i.e. he /she cannot evict the tenants by occupancy without any order of court.

POWERS OF DISTRICT LAND BOARDS The Boards have no powers to allocate

any land which is owned by any person or authority which is either under Cus-tomary, freehold, Mailo.

Where the Board enters or undertakes or concludes such allocations, they shall be null and void.

WHO IS A TENANT?Someone who pays rent to use land or

any occupant who dwells on land. The Constitution provides for two types of ten-ants: a Lawful Occupant and a bona fide occupant.

“Lawful Occupant” means: a person occu-pying land by virtue of the repealed�� Busuulu and Envujjo Law of 1928�� Toro Landlord and Tenant Law of 1937�� Ankole Landlord and Tenant Law of

19371. A person who entered the land with the consent of the registered owner, and includes a purchaser; or2. A person who had occupied land as customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title.

“Bona fide Occupant” means a person who before the coming into force of the constitution -

Had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or

Had been settled on land by the Govern-ment or an agent of the Government which may include a local authority.

For avoidance of any doubt, the Amend-ment only protects lawful and bonafide

occupants on registered land. To qualify to be a bonafide occupant, one

must have settled and utilized the land unchallenged by the registered owner for twelve years or more before the coming into force of the 1995 Constitution. This is a person who settled and used the land be-fore 8th October 1983.

Any person who settled on the land after that date does not qualify to be a bonafide occupant.

The following categories of people are not protected by this Amendment to the Act; ��Unlawful occupants;�� Illegal tenants;�� Trespassers; �� Licensees (these are persons temporar-

ily brought in by the land owners to utilize the land);�� Lessees (these are persons with oral or

written agreements with the land owners to temporarily occupy or use the land) for specific period of time; �� People renting agricultural land;�� People renting premises.

Where someone does not quality as Bonafide Occupant, the law provides that this person takes reasonable steps to look for the land owner and undertake negotia-tions with the owner concerning his or her occupancy on the land. They can seek the help of a mediator agreed upon by both parties.

THE RIGHTS AND OBLIGATIONS OF REGISTERED LAND OWNERS

1. A Mailo and Freehold proprietor owns the land forever.2. May sub-lease, mortgage, pledge or sell the land.3. May sub-divide the land for purpose of sale or any other lawful purpose.

4. May pass on the land to anybody by will, gift or sale.5. Is entitled to be given the first option to buy out the interests from tenants by occupancy who may be on that land and willing to sell.6. May own the land and the develop-ments he /she made on the land.7. Must recognize the rights of the lawful and the bonafide occupants if they exist8. Must recognize the rights of the succes-sors of the Lawful and Bonafide Occupants.9. Uses land in accordance with other Policies and laws governing Land Use.

THE RIGHTS & OBLIGATIONS OF TENANTS 1. Enjoys security of occupancy.2. Must pay annual nominal ground rent to the Land owner.3. May acquire a certificate of occupancy by applying through the Land owner.4. With permission of the Land owner, a tenant may sublet or subdivide the kibanja. 5. May assign, pledge and create 3rd party rights in the land with consent of the Land owner.6. May end the occupancy and return the Kibanja to the Land owner.

WHERE VICTIMS CAN SEEK FURTHER HELP AVOID ILLEGAL LAND EVICTIONS

1. The Committee on Illegal Land Evic-tions (CILE) under the Ministry of Lands, Housing & Urban Development; 2. The Nearest Police Post;3. Land Protection Unit under Police on Tel No: 08001009994. Magistrate Grade 1 or Chief Magis-trate.By Dennis Obbo, Mary Nanziri and Nicholas NdawulaMinistry of Lands, Housing & Urban Development

Commissioner Mulinde Mukasa-Kintu of Lands Ministry sensitizing on the rights and obligations of Land lords and tenants