Analysis of the Law Relating To Land Tenure Systems and Land Injustices in Uganda
Otim Enoch*
Abstract
This research presents an in-depth study and analysis of land injustices and the various land tenure systems in Uganda hindering the development of land by tenants. It established that the problems faced by tenants in this country stem from land tenure systems established under the Constitution and Land Act. There is also a scarcity of land for agriculture in the country leading to food shortage in many parts of the country. Low agricultural output is largely a result of soil exhaustion due to over-cultivation of the same pieces of land for a long time. This problem affects largely the poor who rent land from the land owners and are required to pay heavily for the use of the land. The concept of renting land is new to many people in the country because before the introduction of colonial land registration systems, land was available to all without discrimination and the concept of land ownership was not known to the local communities. The study investigated the problem of how to ensure the rights of tenants under the emerging systems where landlords rent out parcels of their land to the landless at exorbitant prices and under harsh terms can get legal protection of their rights against the harsh land owners. Lastly, it established that the legal limitations to tenants in Uganda relate to the inadequacy, appropriateness, and unresponsiveness of the law to issues such as women’s associations which they can register and through which they can bargain with land owners for better terms of rent so that when the harvest is lost due to reasons beyond their control, they are allowed to try another season without paying for it.
1.0. Introduction
Land injustices in Uganda are a result of citizens and masses at large non-exclusive of government institutions being ignorant about the law about land tenure systems and justices which in the end leads to land injustices on land, it is worth noting that several ad-hoc and somewhat incompetent institutions with conflicting mandates over acquisition, management and disposal of land such as police, cultural institution have also widely contributed to the vice.
The purpose of this study is to find solutions to the injustices such as critical attention being given to the role of cultural institutions as they promote widespread reform in the land regime as well as adequate oversight and protective mechanisms within the Uganda Land Commission. The minister of lands, housing, and urban development summarises the Government goals for land management and administration as follows:
?? ‘’The Government land policy is to ensure the security of tenure for all to balance the interests of agriculture, environmental protection, commercialization, sustainable development, and the rights and interests of the majority of citizens who depend on land for their survival. The land policy and NRM Ten Point Programme captured the need to protect the land rights of Ugandans. The policy specifically provides the direction for transforming this country from a low to a high-income country within 30 years as enlisted in Vision 2040, NDP, and other development agenda documents.’’[1]
It is therefore appropriate to review the government’s legislation relevant and establish whether these laws and policies will assist the government in achieving the desired objectives as summarised in the land policy.
1.1.Background
At the time Uganda became an independent state, on 9 October 1962, there were four land tenure systems operating in the country. These were mailo, freehold, leasehold, and customary tenure.[2] Land tenure is a relationship, whether legally or customarily defined, among people, as individuals or groups concerning land.[3] The constitution under Article 237 (1) provides that land in Uganda belongs to citizens of Uganda and shall vest in them by the land tenure systems provided for in this constitution. Under Article 237 (3) of the constitution land is owned by the following tenure systems (a) customary, freehold, mailo, and leasehold tenure.[4] This is also provided for under section 2[5].
2.0? Land Tenure Systems in Uganda
Four major land tenure systems exist in Uganda which are recognized by both the 1995 Constitution of the Republic of Uganda and Land Act Cap 227. There are customary, freehold, mailo, and leasehold. In addition to these Land tenure systems, there is a unique form of land occupancy provided for under the 1995 Constitution and the Land Act. It is by these land tenure systems that land is owned, occupied, utilized, alienated, or even abused. Therefore, this necessitates the discussion of all these land tenure systems and their impact on the rights of tenants.
2.1. Customary Land Tenure System
2.1.1. Legal recognition of the tenure
The 1997 Land Reform Decree attempted to phase out the customary land tenure system gradually. Under the Decree, it was provided that customary tenants suffered and could be evicted by a statutory lesser on compensation.[6] But in practice, the customary tenants on public land were never evicted even where the land was listed leased out by the Uganda Land Commission, because the necessary committees meant to access compensation were never set up.
The tenure is now recognized legally under the Constitution of the Republic of Uganda as one of the land tenure land can be owned.[7] For the first time, in Ugandan's legal history, the customary tenant can register his or her tenure and acquire a legal title to such landform of a certificate of customary ownership, and such registration is supposed to be done in such manner as prescribed by Parliament.[8] However, the Constitution provides for some sort of outlet through which customary tenure may disappear giving way to freehold.
This is because the Constitution provides for the conversation of customary tenure to freehold land ownership by registration. The Constitution does not provide for the procedure to be followed in registering customary tenure to get a certificate of ownership or to convert it into freehold land ownership. This was omitted by the constituent’s assembly in recognition of the fact that such a procedure to regulate registration would be prescribed by Parliament. Indeed, the procedure of such registration is now provided for under the Land Act.
Under the Act, a certificate of customary ownership may be acquired by a person, family, or community holding customary tenure on former public land.[9]
This implies that there is now recognition of both individual and communal ownership of land under customary land tenure. Customary tenure is regulated by customary rules which are limited in their operation to particular descriptions or classes of persons.[10]
This is because; each community has its own rules that regulate customary tenure, however, the Land Act, provided for specific incidents of customary tenure as a system of land holding.
2.1.2. The Incidents of Customary Land Tenure
Customary tenure applies to a specific area of land and a specific description or class of persons. Therefore, unless there is a specific community with a specific customary law relating to land, it is impossible to talk about customary tenure
The tenure is governed by rules generally accepted as binding and authoritative by the class of persons to which it applies, but such rules are subject to the test of not being discriminative against or prejudicial to the constitutional rights of minorities such as women, children, and persons with disabilities. This is because such persons have always been victims of discriminatory customs and traditional practices.[11] It is these discriminative practices like the denial of women's access to land ownership that partly explains why there is a large number of Landless women something that has always denied them a chance to participate fully in commercialized agricultural production in Uganda.
Under the customary land tenure system, ownership, use, occupation, and land transactions such as alienation, are regulated and managed by the application of local customary mechanisms. To note here is that, customary law in Bunyoro, not which Uganda is a party does not recognize the practice of selling land, but because of economic constraints, many peasants in Uganda have been willing to sell their plots.
Although there is communal ownership and use of land under customary tenure, there is recognition of sub-division of land into smaller parcels belonging to persons, families, and clans the fact is that now rapid population growth rate in Uganda with each family having an average number of about 6 children.
There is perpetual ownership of land tenure, which implies that there is no guaranteed security of tenure under the customary tenure system, something that may facilitate customary tenure holders to carry out permanent development programs like growing perennial crops and constructing permanent structures.
Security of tenure exists when an individual perceives that he or he has a piece of land continuously, free from imposition or interference from outside sources.[12]
It is used to imply a measure of command over land, that is to say, the extent to which the landholder may use and transfer land and the duration for which the rights of the landholder are valued.[13]
The ingredients of security of tenure are protection against eviction, the possibility of selling and transferring land through inheritance, and the possibility of having a mortgage and access to credit under certain conditions.[14]
Security for tenure cannot be measured directly. I’d argued that only owners enjoy secure rights and holders of lesser rights such as tenants, have insecure rights because they depend on the will of the cover of the owner.[15]
? 2.1.3. Procedures for securing a certificate of customary ownership
It should be noted from the onset that the procedure relating to the acquisition of a certificate of customary ownership is not yet complete. A lot of work going on to enact detailed rules to regulate the detailed procedures of securing a certificate of customary ownership. What is available, are the guidelines, and the analysis under this sub-section, is based on the guidelines as given under the Land Act, Cap. 227.
Under the Land Act, a person, family, or community that wants to secure a certificate of customary ownership, has to apply for the same in a prescribed form. Such forms will have to be submitted together with the prescribed fee to the committee of the parish kin with the land and where the subject of the application is situated.[16] Upon the receipt of the application, the committee.
Will have to publish and post in a prominent place in the parish and on the land question, a notice in a prescribed form.
Such notice by the parish committee has to specify the location and approximate the area of the land, and require all the persons who will be claiming any interest in the land or in any adjacent land that may be affected by the application, to attend the committee meeting at a specified time.
The rationale of this procedure is to enable such persons with claims and boundary claims to put forward their claims before the parish land committee. Meanwhile, the time specified in the notice, must not be less than two weeks from the date on which the notice is published and posted.[17] By such meeting, it is intended that the parish committee will be able to exercise its functions which include determining, verifying, and marketing the boundaries of all interests in the land that will be subject to the application, determining rights of way and other easements over the land in question. It is also at such a meeting that the committee will be expected to adjudicate upon and decide by applying customary law, any questions or matters concerning the land referred to by any person with an interest in the land. At the end of the meeting, the parish land committee has to record that any person or persons have exercised rights under customary law over land and that such person or persons who own the land are entitled to be issued with a certificate of customary ownership. The committee also has no record as the case may demand that the interest of all those entitled to the land or any or any part thereof, is safeguarded.[18]
Whatever will have commenced in the parish land committee will have to be recorded in a report by the committee on the application. Such a report will contain all claims to interest and rights in the land or to the occupation and use of the land.[19] The committee must also point out in the report, its opinion on whether those claims have been proven to exist, setting out its findings and recommendations with reasons for the application. The parish committee’s report must in all cases include its recommendation regarding whether the application should be approved with or without conditions, restrictions, or limitations endorsed on the certificate and whether all claims made about the incidences of customary ownership evidenced by the certificate or that they should be refused.
A copy of the parish committee’s report is supposed to be given or sent to the applicant while the report is to be submitted to the District Land Board. Another copy of the same report should however be made available within the parish for inspection by all persons who submitted claims to or who we’re heard by the committee.
To note is the committee in the exercise of any of its powers, on receipt of the application for a certificate of customary ownership, is bound to comply with the rules of natural justice. But subject only to that duty, the committee may hear evidence that would otherwise be inadmissible in a court of law, call evidence of its motion, use evidence where relevant resort to the customary procedures of dispute settlement with or without adaptation and addition.[20]
The chairperson of the committee is also empowered, to facilitate the discharge of the committee's functions with much ease, to administer oaths, and to issue summonses, and orders requiring the attendance of such persons and the production of such documents as he or she may consider necessary for the carrying out of the committee.
On receipt of the report submitted to it, and the recommendations of the committee, the board is supposed to consider the application in the light of that report and those recommendations.[21] Although the board is bound to consider the report and recommendations of the committee, it is
Not bound by such reports and recommendations and may therefore come up with its own decisions.[22]
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? 2.1.4. Rights of a Holder of a certificate of customary Ownership.
A certificate of customary ownership confers upon the holder of the same certain rights either flow from the inherent tenure of customary tenure as recognized by the customary law of a given community or are expressly specified in the certificate of customary ownership. The rights of a holder of customary ownership are provided for under the Land Act Cap. 227 and can be summarized as follows: -
a)????? The right to lease
The holder of a certificate of customary ownership may lease the whole or part of this land. These can be the nature of private leases between the holders of the certificate of customary ownership as a lesser to another (lessee).
b)???? The right to Permit Usufructuary Rights
The person holding a certificate of customary ownership can permit a person Usufructuary rights over the land or a part of it for a limited period which may include a period for the life of the person granting or the person granted Usufructuary right.[23] A Usufructuary right is a right to benefit something from the land. In this case, it might include the right to collect firewood, and fruits from the land or even hunt on such land
c)????? The Right to Mortgage or Pledge
The above concept did not mean the same thing since they apply in different circumstances. A pledge is the act of delivering goods, chattels, or negotiable securities by one person to another as security for repayment of a loan or a debt.
The borrower or debtor known as the pledger, does not part with ownership of the item pledged, but there is an implied power on the pledge to sell perennial cash crops like coffee for the rare of losing the same on the expiration of the statutory leases.
2.2 Freehold Tenure System
Freehold means absolute ownership of land[24] Freeholds were first allocated in Toro under the 1900 Agreement followed in the Ankole by the 1901 Ankole Agreement later the colonial government granted selective freeholds on crown land for agricultural and industrial development. Outside Buganda there were types of freehold that were introduced;
2.3. Mailo Tenure System
2.3.1 Legal Recognition of Mailo Tenure
Mailo tenure IS defined under the Land Act, Cap. 227 to mean the holding of registered land in perpetuity and having its roots in the allotment of land under be 1990 Uganda Agreement and subject to statutory qualifications, the incidents of which are described in the Act itself.[25]
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Like all the other land tenure systems, mailo too drivers its legality from the 1995 Constitution of the Republic of Uganda.[26] The tenure had been abolished under the Land Reform Decree 1995 and whatever land that had been held as mailo land became leasehold on conversion. However, the 1995 Constitution revives mailo as one e of the land tenure systems, and its incidents are derived from written law.
2.3.2 The Incidents of Mailo Tenure
Under the Land Act, the Incidents of mailo, involve the holding of registered land in perpetuity, ownership of land separately from the ownership of development on land made by a tenant occupancy, and exercising all powers of the owner of land held as Freehold title cleared the encumbrance on the land which is mainly government charges for unpaid survey and fees registration fee.
Most of the mailo land in Uganda has since been occupied by either the descendants of the former tenant under the 1928 Busuulu and Envujjo law, or by those who just occupied it on the pretext that they were occupying utilized land, their grandfather’s land, and so forth, most of these people who occupied mailo land though they had no title to the same, now quality to be bonafide occupants.
What can be observed therefore, is that the same plots of land that have ever been owned by private mailo owners and the former tenants that were formerly regulated under the 1928 Busuulu and Envujjo law are now the relationship between mailo owners and the tenants by occupancy regulated under the Land Act, Cap, as will be seen in the next chapter.
2.4. Leasehold Tenure System
Leasehold tenure means the holding of land for a given period a specified date of commencement and ending on a fixed date of expiry. The tenure is held on such terms and conditions as may be agreed upon by the lessor and lessee. 49 Such terms and conditions may in some cases, however, be regulated by law to the exclusion of any contractual agreement reached between the parties. The Land Act contemplates three types of leases that are to say statutory leases that were granted out of former public land, private leases on either mailo, Freehold, or customary held on the conversation
The report should state whether it recommends that the application be rejected, approved unconditionally, or approved subject to conditions or restrictions 155 to be endorsed on the certificate. The committee must submit its report to the relevant land board with a copy to the applicant. It must also make a copy of its report available for inspection by all persons who claim or who were heard by the committee.
The decision on whether or not to grant a certificate of customary ownership rests with the land board after considering the committee’s report. The board is given wide powers in dealing with the committee’s recommendations. It may accept the committee’s recommendation to issue or not to issue a certificate of customary ownership or it may reject it outright. It may reject the committee’s recommendation to grant a certificate or vary the conditions or restrictions proposed by the committee. 158 Conversely, the board may order a certificate to be issued contrary to the committee’s recommendation.
?It is also within the board's powers to return a report to the committee with instructions for further actions that it requires to be taken. Section 8(2) states that where the board rejects or varies a committee’s recommendations it must give reasons for its decision.
The board is required to communicate its decision in writing to the Recorder.160 Where the board decides that a certificate of customary ownership should be issued, the Recorder shall issue the certificate to the applicant with the endorsement of conditions, restrictions, or limitations imposed on the board.161 There is no provision in the Act for any person to be heard or to make a representation to the aboard. However, under s. 8(6) any person aggrieved by a decision of the board has that right and appeal to the land tribunal. The tribunal may confirm, vary reverse, or modify the board’s decision and may make such other order as it is empowered to make under the Act.
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3.0 Land Injustice in Uganda
Land has been and remains a politically sensitive and culturally complex issue for Uganda. Uganda's history about the land question is characterized by indications of a breakdown in land administration, disparities in land ownership, tenure insecurity, and conflict
There is a popular quote from Margaret Mitchell’s novel, Gone with the Wind, that “Land is the only thing in the world worth working for, worth fighting for, worth dying for, because it’s the only thing that lasts.” Whereas this is the most important asset for the survival of humanity, it has bred many local and international disputes.
In Uganda, it is an indispensable factor of production and a key cog in our economic wheel, yet it has always been an emotive issue.
However, what many people seem to forget is that historical land injustices began when Uganda became a protectorate under the British East African Protectorate.
Since the struggle for independence, the country has been grappling with deliberate misapplication of laws and policies, purposive subversion of land administration processes, and illegal pre-independence treaties.
Sometimes ambiguous post-independence skewed settlement policies have been our benchmarks for addressing land issues, and we are still struggling to close the lid on double-edged foreign concepts of land ownership.
In all honesty, it was not until the promulgation of the Constitution of the Republic of Uganda 1995 as amended that the first rays of addressing historical land injustices began to show.
Although there is still a long way to go, the country has made tremendous progress in seeing the implementation of the recommendations in the Commission of Inquiry Report of Justice Catherine Bamugemereire.
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3.1. The steps taken
First came the establishment of the National Land Commission that would later agitate for the land reforms that the country has seen hitherto. The Commission, through a collaborative framework, later developed recommendations that culminated in the arrest and detention of several land grabbers, which gave effect to the constitutional requirement for redress of historical land injustices.
It goes without saying that what the country needs right now is solutions rather than rhetoric and politicization of the whole issue
?With the criteria for listening and deciding the claims already in place, addressing historical land injustices conclusively now seems more possible than ever.
Affirmative Action, restitution, and resettlement on alternative land are among the remedies the government would consider upon concluding qualifying claims. Challenges on the way
Of course, the government would encounter a myriad of challenges, but support from the National Treasury, the Ministry of Lands, and the National Police Service will power the initiative over such obstacles as legal battles and financial constraints.
This will also make it possible for the implementation of other remedies such as reparation, order for revocation and reallocation of land, and sale of contentious pieces of land and sharing of proceeds.
Nevertheless, it is high time Ugandans, especially the political class, should realize that politicizing the issue will do more harm than good.
4.0 Solutions to Land Injustices
The rights granted to a tenant by occupancy are as significant as restrictions imposed on the tenant by occupancy. Several implications flow from these rights and restrictions as discussed below:
Under the Land Act, the lawful and bonafide occupants are called tenants by occupancy[27]. To guarantee that the tenants by occupancy can transfer their rights through mortgage or assignment, the land Act provides for a certificate of occupancy to create the Land Act provides for a certificate of occupancy to create registrable interest that can be bought and sold[28].
A tenant by occupancy is only entitled to be issued with a certificate of occupancy if he or she has paid rent or the land and has no arrears of ground rent outstanding[29].
By guaranteeing the security of occupancy, it will be [possible for the tenant by occupancy, to undertake long-term development plans. During the research, it was revealed that the kibanja holders had to build a brick house to erect any permanent structure or even grow permanent crops or else they risked their tenancy being terminated. But now the tenants by occupancy even on registered mailo land are free to undertake such developments without losing their tenancy since there is no legal impediment.
The freedom given to the tenant by occupancy to transact in land such as to assign, sub-let or pledge, create third-party rights, subdivide, and undertake any other lawful transactions in respect of the occupancy, will increase the land market. Already some people bought land in Uganda from bibanja holders even though they doubted the latter’s right to alienate land.
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Even now the fact that it is legal for a tenant to alienate land, land alienation through sales especially, is likely to be on the rise.
The fact that the amount payable by the tenant by occupancy is too little and by the time it is revised after five years it may be of no value makes the occupancy uncommercial to the owners of registered land. Consequently, the owners will soon opt for co-ownership either as joint tenants in common in respect of the land in which a tenant by occupancy has an interest alternatively, the registered owners will prefer selling part of the land to a tenant with interest with a registered interest, the tenant by occupancy will best exercise has rights of transacting in land.
The subdivision of land allowed to a tenant by occupancy is likely to result in land fragmentation. In Uganda, the former bibanja holders sold some plots on their bibanja and there is also a tendency to subdivide land based on the number of children therefore, where the law guarantees the rights to the tenant by occupancy may be inherited, in future economic plots of land belonging to different individuals.
4.1 The concept of tenants on land in Uganda
Due to the scarcity of land in the district, a new concept of accessing land, largely by the poor has emerged. Owners of land under the recognized tenure systems, namely mailo, freehold, leasehold, and customary have developed a practice of renting out parcels of land to individuals for agricultural purposes. This is normally for a short period; say a season for a particular crop to be grown, a year, or even a longer period of up to two years. The tenant is required to either pay in advance for the use of land as agreed between the land owner and the tenant or at a later stage after harvesting the crop grown on the rented land. Payment is either made in cash or kind normally in the form of the crop grown. This type of arrangement is associated with several problems. These include:
Landowners can change their minds at any one time and chase tenants after refunding the money paid to them for rent. However, this is a violation of the rights of the tenant. Where payment is made in advance, and the harvest is lost due to weather changes or disease attacks on the crops.
There is no protection for the tenant in the form of insurance, still he or she must pay for another season. Marketing of the harvested crops is a problem; due to lack of marketing skills and poor infrastructure, farmers get low prices that cannot be balanced with the investment they make in rented land. This form of transaction is not recognized by law and hence the parties are not legally protected.
4.2 Weakness of Land Act Cap.227 in the protection of the rights of tenants
Causes for the weakness of the Land Act have been explained about the contradictions and class struggle that dictate their character. It has been demonstrated that the Land Act is both an active agency in the historical process and encapsulates the balance between social forces at a particular moment and ideological forms in which the struggle is fought out. The weakness of the Land Act has failed in the said act to provide the desired Land tenure. Security to the tenants by occupancy is a result of the conditioned state political processes in response to the competing interest and claims of various groups, which cause the state to act contradictorily in its forms of instruments or interventions in land relations the state has limited basis in the society and it must, if it is to maintain itself at the head of populations, repress some of the social groups by rendering them economically powerless by inter alia disfranchising them in land relation, while at the same time it appeases, co–opts and enfranchise those social it seek to ally with.
John Kigula (in his earlier cited work) the positions taken by the state in this franchising and enfranchising given social groups concerning land are not permanent. At certain stages and as the circumstances demand or political/economic exigency the state can shift positions in favor of the social group it had all along repressed and disfranchised[30]
Sec. 31(1) sub sec 1 of the Land Act provides that a tenant by occupancy shall enjoy the security of tenure on the land. This security of tenure is enjoyed by the tenant irrespective of whether or not he has a certificate of occupancy where the board has determined the annual nominal ground rent.
It is conceivable that the landlord can be willing to take up the initiative of helping the tenant besides; research has shown that the two parties are not friendly. This state of affairs goes on to explain the misplaced choices of laws the state can enact for political reasons to secure the political loyalties of a given group, yet the law cannot respond to the needs of the said groups.
All the above has the effect of producing that by enacting tenure security law tenant by occupancy, the state merely engaged in social decadency and or invented law as an ideological state apparatus by harping on the very ills that affect the tenants. By making the tenant hope that he can ever get a certificate of occupancy and that he can ever afford money to buy out himself the state is inverting reality and throwing dust in the eyes of the tenants so that the tenants cannot appreciate their plight. This is what is called the ideological moment of law.
4.3 Summary of finding
Despite the enactment of the Land Act. The reality on the ground shows that the tenants do not enjoy the security of tenure. The legal limitations relate to the inadequacy, inappropriateness, and unresponsiveness of the law. It was found out in the study that the majority of the tenants are illiterate and do not know the provisions of the land act which gives them security of tenure.
It was also found out that the majority of the tenants do not have documents to prove ownership right, in case they were faced with a challenge, they could hardly prove ownership of land respectively occupied by them .it further found out that the mailo land owners do not recognize the rights of ownership created by the Land Act.
The study has further revealed that the tenants by their nature are poor, they are exploitable and vulnerable. The landowners are fond of using money to displace the tenant by paying them small amounts of money which cannot buy land elsewhere. It has also been revealed that the majority of tenants are women who are sidelined by traditions and culture, despite the provisions of the Constitutions and Land Act.
5.0 Recommendation
In light of the above, what is pertinent is pointing out the areas and strategies for reform. Having analyzed the problems associated with land tenure in Uganda and the injustices and its impact on the tenant, it is recommended that;
Tenants should be assisted by the government to form associations that they can register and through which they can bargain with land owners for better terms of rent so that when the harvest is lost due to reasons beyond their control, they are allowed to try another season without paying for it.
The government to improve infrastructure, especially in rural areas where the majority of the poor live so that buyers reach the farmers and buy the harvest at relatively high prices because they will have avoided middlemen.
Since this practice is increasing and it supports the economy, the government should recognize it as another form of land ownership and provide legal guarantees for those who engage in it.
That customary land tenure should be put at the same level as the other land tenure system.
Therefore, a certificate of customary ownership should be taken to have the same weight as a title.
Meanwhile, the Constitution provisions and the provision in the Land Act conversion of the customary tenure to freehold should be repeated. This is because failure to recognize a certificate of customary ownership as having the same weight as a title may influence banks to consider customary land tenure as having the same problems as before the propagation of the 1995 constitution of the Republic of Uganda and enactment of the Land Act thus preferring land title relating to freehold, mailo, and leasehold when extending loans for land ownerships under the mortgage. Land tenure law should facilitate the development of land tenure towards a single, uniform, efficient land tenure system for the entire land nation rather than separate complex systems for different areas that increase administrative costs and lead to confusion among land users about the rights in land under different complex systems. The land tenure systems should protect access to land for people who have no income-earning possibilities outside the agricultural sector of the economy to avoid creating a landless class of people who have no way to earn their living because research has shown that there is a group of small farmers with very low income who are nevertheless able to exist because they have access to land to grow their food, therefore, these people should not be evicted or pushed off their land.
The land tenure system should provide flexibility in the transfer of land so that progressive farmers who can make the best use of land can obtain land for their farm operations. The land tenure systems allow for an active land market, and the land market is critical for the economic development of agriculture. Therefore, any change in land tenure law should ensure that it the flexible enough to allow the most productive land users to access land for use. The land tenure law and practice should contribute to the economic and social development of agriculture and the nation although the economic development of agriculture is dependent on more than simply a good land tenure system.
5.1 Conclusion
The researcher has explored at least all the land tenure systems present in Uganda the peculiar land tenancies that is to say the lawful and bonafide occupancies. Emphasis has been put on the impact of these land tenure systems on the rights of tenancy in Uganda. Following the findings of the research, the following conclusion can be safely arrived at.
The study has demonstrated that the Land Act is not effective and protecting the rights of tenants in occupancy because there are weaknesses in the Act which are intelligently exploited by the landlords to undermine the security of tenure for tenants. That the others factors like poverty, illiteracy, and ignorance of the weaknesses in the Land Act are a result of the conditioned state processes undertaken to respond to the social struggles of various social forces in the society which the state seeks to appease or repress to maintain stability and reproduce itself at the head of the population. Land with titles is inaccessible to those with low income. Most of the freehold and leasehold estates are vested in a few rich people. Meanwhile, most of the mailo land is vested in absentee landlords who are not utilizing it. On the other hand, the peasant land tillers can only access land by buying from bibanja holders that is to say the lawful occupants, and at times from the mailo owners. But even then these conveyances only vest equitable interest in the buyers since they are rarely registered. Those who cannot afford the land prices have ended up trespassing on Mailo land or buying from other trespassers.
The researchers also revealed that the presence of the occupancy whether lawful or bonafide acts as a letter to the economic utilization of land by the registered proprietors. But most fundamentally, it contravenes the proprietor’s Constitutional rights to property since even the compensation provided for under the Land Act is retrospective in the way that it presupposes Acquisition before compensation yet the Constitution provides that any compulsory deprivation of property for whatever reason justified by the Constitution must be after a fair and prompt compensation. It has also been revealed that the Land Act cannot help to regulate the tenure relation of tenants and landlords unless the state physically intervenes as an erratic crisis manager.
In general conclusion therefore the right of tenants is not realizable as long as the state continues to legislate land laws for political reasons. Since we noted the state action of allying with a given social group is not permanent, we can expect that very soon even the physical intervention of the state by its agents like the Residential District Commissioner may be abandoned and the tenants may be left completely alone; as and when political exigency may so demand the state even has propensity to blatantly change the law so that it can be seen by “bare” eye that the landlords are clearly on top of the tenants
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* Assistant Lecturer, Department of Public and Comparative Law, Faculty of Law, Victoria University, Kampala, Uganda. Mobile line +256703977097. Email address: [email protected]
[1] Hon, Daudi Migereko: How effective land policy will transform Uganda. The New Vision of 30/07/2015. p.20
[2] Principles of land law in Uganda by John T. Mugambwa
[4] The constitution of Uganda 1995 as amended
[5] Land Act cap 227 as Amended
[6] Article 237 (8) The constitution of Uganda 1995 as amended
[7] Article 237 (9) The constitution of Uganda 1995 as amended
[8] Lawful’ or ‘bonafide' occupant
[9] Article 237 (9) The constitution of Uganda 1995 as amended
[10] Section 3 Land Act, Cap. 227.
[11] Section 30 (1) Land Act, Cap. 227
[12] Bruce – 1 & SE Migot – Adholla: Searching for land tenure security in Africa, Kendall, and Hunt Publisher PP. 25-266.
[13] Christian Lund: African tenure, questioning Basic assumptions.
[14] Hand on Best practices, Security of Tenure and access to land; Implementation of the habitat agenda, Nairobi, 2003 HTTP 11 WWW a habitat. Org/publication IHS 5888 99e. PDF Accessed 2/07/06
[15] FAO lalk1 studies; Land Tenure and Rural and Development https://PDFwri. Org/ref/fao, -02- Land j ensure.pdf. acce4 on 08 A 7/06
[16] The Land Act, Cap. 227 S 30(3) (c)
[17] Ibid. S 30(5).
[18] Ibid. S 3.
[19] Ibid
[20] Section 33(1)(b) & Section 32(9)
[21] Section 32(6).
[22] Where he takes steps to challenge the notice served by the registered owner, requiring the tenant by occupancy to show why the tenancy should not be terminated for non-payment of rent.
[23] Section 33(2) Land Act, Cap. 227
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[24] Section 3(2) (a) (b) – (iv)
[25] Section 1 (1) & Sec 3 (4) Land Act Cap 227
[26] Article 237 (3) (c)
[27] Section 1(dd) & section 31 Land Act.
[28] Public Legal Land Reforms in Uganda HTTP/www.act3
[29] Section 33(3) Land Act
[30] Examples of the 1927 Busullu and Envujjo law which makes land ideally belong to the tenants with whom the state had allied for economic production.