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BY:ADMIN
KAMPALA
Since 1900, commoners have had to fight for their land occupancy
rights. After dividing the mailo, the leaders of the day raised no finger as
the colonists declared the rest of the land ‘crown land’.
By this stroke
of the pen, the colonialists became holders of the radical title, and all land
users became, tenants of the British.
As holders of
the radical title, the colonialists proceeded to grant a limited number of
freehold estates to selected individuals and corporations, and by virtue of
political sovereignty, asserted the right to control the management and use of
land in Uganda.
They however
delegated the control of mailo to the mailo landlords.
The mailo
landlords exacted heavy taxes in the form of Busuulu and Envujo on the bibanja
holders who in protest threatened to stop growing cash crops.
This threat
would undermine the production of export crops thereby diminishing the colonial
states revenue base. Consequently their grievances were addressed by the
passing of the Busulu and Envujo law, 1927.
The law assured
them of security of tenure and freed them from the fear of arbitrary eviction.
Upon
independence in 1962, the mailo system was retained including Busuulu and
Envujo Law and all former crown lands became public land under the Public Land
Act, 1969 enacted to govern its management.
The official
mailo being public land had already been placed under the Commission by the
1967 Constitution.
In 1975, however, Idi Amin
issued “the Land Reform Decree” declaring all land
public land, vesting the same in the State to be held in trust for the people
Uganda and administered by the Uganda land Commission.
The decree
abolished the Mailo tenure, the Busuulu and Envijo Law, effectively removing
the security of tenure guaranteed by the 1927 Busuulu and Envijo Law.
When in 1986 the
NRM administration took power, it vowed to correct all historical injustices.
This was interpreted by the mailo landowners as the return of their rule.
They demanded
economical instead of nominal rents from Bibanja holders, and demanded for a
restoration a Buganda Kingdom with political power, chiefs, and land-hence the
call for federo, special status.
This delayed the
restoration of security of tenure taken away by the 1975 Land Reform Decree.
The situation was aggravated by the Kabaka’s call to the Baganda to stop
selling land.
Many non-Baganda
had bought mailo and bibanja. They saw this as a move against them.
This heightened
ethnic tensions, which thankfully culminated into a major land reform enshrined
in the Constitution of the Republic of Uganda, 1995 and the Land Act Cap 227
enacted in 1998.
The 1995
Constitution repealed the 1975 Land Reform Decree, and vested all land to the
citizens of Uganda, under four land tenure systems namely customary, leasehold,
freehold and mailo.
The Land Act Cap
227 operationalises all constitutional reform relating to land and provides a
framework for the management of land under a decentralised system.
The constitution
was the first document ever to recognise customary land holding as a land
tenure system in Uganda.
It guaranteed
the security of land ownership of the majority of Ugandans who hold land under
customary tenure.
The Constitution
provided that customary tenants could acquire certificates of customary
ownership which they could convert to freehold titles.
The Land Act Cap
227 reiterated these provisions.
Another radical
provision of the constitution and the Land Act was the recognition of the
rights of tenants namely, legal and bona fide occupants, on mailo land with
security of occupancy.
A ‘legal occupant’ is the one
who occupied land by virtue of the repealed Busuulu and Envujo Law of 1927
(kibanja holder) or who had entered the land with the consent of the registered
proprietor.
A ‘bona fide occupant’ on the
other hand, is anyone who had occupied and utilised or developed any land
unchallenged by the registered owner or agent of the registered owner for
twelve years or more.
Bona fide and
lawful occupants may only be evicted from registered land on grounds of
non-payment of rent and only by order of court.
However, the
rent payable is nominal, non-commercial in nature, and is to be determined by
the District Land Boards with the approval of the Minister.
It is important
to recognise that there was no public land to be returned to the institution of
a traditional or cultural leader as a corporation sole following the vesting of
all land in the citizens of Uganda and also conferring ownership on customary
tenants on former public land by the 1995 constitution.
A cultural
leader can however as a corporation sole like any Ugandan, juridical or
natural, can acquire and own land under any four tenancies.
The cause of
current illegal evictions in Uganda therefore, is not the lack of laws
protecting Bibanja or other untitled occupants.
It is therefore
within this scheme of things, that one of the core challenges of President
Museveni in his fresh term, is to consolidate the security of tenure for all
Ugandans in perpetuity.
