Land issue stunts city devt

By Gerald Businge

LAND remains a hot and cold potato in Kampala, because of the land tenure system. Hot because everyone wants to protect their right and claim to the land they own or occupy, and cold, because it is becoming increasingly difficult to get ‘genuine’ land in Kampala.

Recently, the Court of Appeal dismissed a High Court ruling in which a Kampala businessman, George Mitala, was awarded ownership of land in Ndeeba –– Plot 1028 on Kiboga block, on which over 100 customary occupants live and work.

Justice Katusi of the High Court had on February 9 2001 ruled that there was no proof of ownership of the land by the customary occupants who had lodged the complaint of being wrongfully dispossessed by KCC.

This is because the law (including the 1998 Land Act), creates multiple legitimacy over land ownership and use. One of the Court of Appeal judges actually said the Kampala District Land Board had awarded Mitala “air”.

Such is what you too may get.
According to the 1995 Constitution, land is vested in private citizens who may own it either under mailo, customary, leasehold and/or freehold tenures.

John Kigula, a lecturer at Makerere University’s Faculty of Law and a land consultant who has just finished a study on Land Tenure and Urban Development for KCC, says legal dualism of land in Kampala has led to legal recognition and social recognition of claims to land. The result of this is more than one party has rightful claim over particular land parcels. This situation is complicating developing the city.

Augustus Nuwagaba, a senior lecturer at Makerere’s Faculty of Social Sciences and a land policy development consultant, says the current land tenure constrains the land market, especially mailo and customary land, leading to a “land impasse.”

“The problem with Mailo land is that it creates legal ownership of land which the owner does not occupy and occupation of land which the occupant does not own. This has led to constrained land transactions and encumbrances,” he says.

Martin Mugisha recently had it rough when trying to buy land for his tile-making business. “We are forced to buy land twice. You have to first buy it from the tenant, and later you buy the title from the landlord if your project is to be secure. I spent months getting land and being discouraged by more than one claimant.”

Nuwagaba, who has been doing a study with SIDA (Swedish International Development Agency) on Land Tenure, Administration, and how it impacts on Urban Development, says the study shows that land administration is an other problem of land development in Kampala.

“The city has multiple land administration organisations, each pursuing its own interests irrespective of the urban development standards as stipulated by the Town and Country Planning Act,” Nuwagaba says.

KCC Land Board, the central government (Uganda Land Commission), Buganda Land Board and institutions such as churches and schools all dispense land without having a common land management information system.

Nuwagaba says this is bad for the city.
The Town and Country Planning Act, 1964 empowers KCC to plan for all land under its jurisdiction irrespective of the land’s tenure system or administration.

“Despite the Act, KCC practically fails to override private interests. It has no leverage of power to control access and ownership of urban land,” Kigula’s report says.
“KCC enforcement is very weak.

They have been inefficient in enforcing standards hence the proliferation of slum settlements in the city,” Nuwagaba comments.

Nuwagaba says this is because KCC lacks capacity in terms of equipment and personnel to enforce the necessary legal requirements.

“Up to now KCC has only six physical planners. This is a drop in what is required for effective enforcement of modern standards,” he says.

KCC’s land officer Jane Bagonza, however, says KCC has a master plan on how to develop the city.
“We expect everybody to follow it,” she says. “But enforcement is difficult, and mailo land creates problems for planning,” she adds.

Kigula says the absence of an exclusive urban tenure regime indirectly incapacitates KCC. “Security of tenure accorded tenants by occupancy under the Land Act may work against optimal urban land use and also aggravate informal userships.”

Customary tenure was abolished in urban areas under the repealed Public Lands Act, 1969; but the current Land Act, 1998, and Land Regulations, 2001 encourage it in urban areas.

Kigula argues that the security of tenure awarded to customary tenants and occupants is suitable for rural areas, not Kampala city.

“In the city, this security encourages informal userships and less orderly development. There is need to formulate an urban policy on the basis of an exclusive urban tenure system,” Kigula says.

Nuwagaba agrees: “In such a volatile urban situation and mass society in Kampala, such a system can hardly survive.”

More than 52% of land in Kampala is owned under mailo tenure, most of it controlled by the Buganda Land Board. “It is not the landlords or the kingdom creating the problems. It is the Land Act from where the tenure emanates. The Land Act provides for customary occupancy which is dangerous to urban development,” says Paul Ntale, Buganda Land Board’s land management officer.

“It is very difficult to develop the city with customary tenure. Most occupants are on very small parcels. The land in such places is irregular and difficult for developers to acquire. Especially when it is more than one person the project may affect. Yet customary tenants have the right to sell, accept compensation or not,” says Ntale.

“As Buganda Land Board, we are very uncomfortable with the current land law because we can’t allocate land to potential developers. Customary tenure needs to be abolished in the city.

But we abide by and respect the law,” Ntale explains.
The issue of land is very sensitive in Uganda, but borders on issues in Buganda. Mailo land was introduced by the 1900 Buganda Agreement. Overnight, by just a stroke of a pen, some individuals were granted big chunks of land (mailo), making the original owners squatters on their own land. The Land Act, 1998, was intended to mildly reverse this.

The result is that a piece of land might have two legal owners. While both can dispose of the land, the law says the titleholder and the occupants must do everything in consultation with each other, which can lead to friction.

Margaret Winyi, a mailo landlord, feels they are being oppressed by the law and thus cannot develop ‘their land’.

“I inherited the land from my parents. They were bosses. But now I just have to beg the occupants to do something. Are we owners or not? We need powers and enough opportunity if we are to enforce development,” says Winyi.

A KCC official who preferred anonymity told The New Vision that many people equate any land development activity to being evicted.

“They are complaining that they just
wake up one day only to find graders, tilling on their land or being fenced in and forced to vacate the land,” he says.

Ephraim Buriituza, the president of Uganda National Tenants Union, says the ‘foreign’ mailo land affects development because the tillers of the land cannot develop what does not belong to them fully.

“Since land in Uganda is generally owned by custom and ancestrally, the mailo tenure must be done away with for the promotion of modernisation of agriculture and shelter for all strategies,” Buriituza says.

In some areas where land development has been tried, the result has been multiple evictions.

In some cases, shortly, the people are reinstated. This happened in Rubaga South where over 160 occupants were evicted and later reinstated on “their land”.

“This is our land. I can’t let the landlord push or pressure me,” says Paul Mpugu, a tenant in Rubaga. “They got the land free at the expense of our parents. We the locals know our bibanja (plots) and that is what we respect. But now before we put up permanent projects or want to sell, we have to ask for permission. We are being made beggars who cannot do anything on our own heritage.”

Under normal circumstances, tenants are not supposed to be evicted, unless the developer or landlord gains their consent and compensates them or buys them off.

Many are still ignorant about the Land Act, and some unscrupulous landlords are taking advantage of this to evict them.

“Most of us don’t have money to go to court, not even the influence,” says Mukasa a tenant in Nakulabye.

All the above issues, coupled with the effects of rural urban migration, have spelt disaster for the city’s development plans. This is why there are many “illegal structures” and underdeveloped settlements in Kampala, as near the city centre as Wandegeya, Nsambya, Kisenyi, Kasubi, Rubaga and Makerere Kivulu.

Some have taken advantage of the multi-tenural system and weak enforcement standards by occupying public land, undeveloped mailo land, wetlands and any ‘free’ piece of land they come across.

Such people are influenced by politicians who promise them security of land in exchange for their votes. Therefore, in a bid to demolish illegal structures, KCC is hindered by the same political leaders.

Nuwagaba, who did a PhD thesis on land, refers to this scenario as the emergence of urbanisation of poverty: “It depicts a situation where the city authority increasingly succumbs to the demands of the poor instead of the poor struggling to grapple with the demands of the city.”

What can be done to help KCC? “There is need to revisit the land reform issue. It is necessary to institute a specialised land tenure system for the city. This revolutionary intervention should seriously consider that the relatively orderly development in Kampala has been carried out on public land rather than mailo,” Kigula says. “But there is lack of political will and direction,” he, however, notes.