What is communal land?
I wish to comment on the legal aspects concerning the problems in Bulisa where some pastoralists who claim to have bought land there are being resisted by the local bagungu on the ground that the land involved is communal land to which the pastoralists could not have obtained legal ownership.
By Peter Mulira
I wish to comment on the legal aspects concerning the problems in Bulisa where some pastoralists who claim to have bought land there are being resisted by the local bagungu on the ground that the land involved is communal land to which the pastoralists could not have obtained legal ownership.
The issue here is whether the balalo or any other person can legally acquire an interest in what is claimed to be communal land. The Land Act defines customary tenure as “a system of land tenure regulated by customary rules which are limited in their operation to a particular description or class of persons the incidents of which are described in section 4 of the Act.â€
Section 4 instead of enumerating incidents of customary tenure actually sets out what amounts to this type of tenure. Among other things, this includes a form of tenure applicable to a specific area of land and a specific description or class of persons or a form which provides for communal ownership and use of land.
On first brush therefore the bagungu can claim to be owners of the land in question if they can bring themselves within the definition of what amounts to communal land ownership.
According to the Land Act a community for this purpose means “an indigenous community of Uganda as provided for in the Third Schedule to the constitution, or any clan or sub-clan of any such indigenous community communally occupying, using or managing land.â€
This definition raises some intricate questions such as who determines the extent of the land to be regarded as communal land and through what processes such determination can be made. Luckily the land Act answers these questions.
Any person, family or community holding land under customary tenure on former public land may acquire a certificate of customary ownership in respect of that land by applying for a certificate of customary ownership through the parish land committee. On receipt of the application the committee is required to carry out a number of things including the determination of the boundaries. After the committee has carried out its duties it is supposed to make a report to the district land board which issues certificates of occupancy or ownership.
In order to protect the interest contained in such a certificate the law provides that the certificate is registrable under the provisions of the Registrations of Titles Act just like mailo, freehold and leasehold interests. The advantage of registration is that the first interest to be registered is protected as against other claimants and everybody is put on notice of the fact of one’s ownership. All these factors come into play in considering the legal position of the problem in Bulisa.
Firstly, for the Bagungu to claim customary ownership of the land, they must show that they have a certificate of occupancy to the land in question. Secondly, such certificate must be registered under the provisions of the Registration of Titles Act otherwise it would be a defeasible interest.
If the certificate is not there the law would regard them as putative owners of the land and it seems probable that with the law as it stands, courts of law will not enforce an unregistered interest where there is clear provisions of law. As for the pastoralists’ claim that they bought the land comprising 30 miles, the question is from whom? For such a purchase to be recognised in law, one must show that one bought the land from a person or group of persons who had either a certificate of ownership or certificate of occupancy in the case of communal ownership. Anything short of this is not a purchase in law. It cannot be claimed that they bought a kibanja because a kibanja cannot extend to 30 square miles.
The problem in Bulisa is a legal one which can only be solved by following the provisions of the law by all concerned. It also serves as a wake-up call to other communities which still follow the customary form of land tenure to obtain the necessary certificates to them and to register them.
Otherwise the door will be left open to unscrupulous people to sell their land and cause them the kind of problems we are witnessing in Bulisa.
John Nagenda is travelling in the Usambara Mountains. He will be back next week.
I wish to comment on the legal aspects concerning the problems in Bulisa where some pastoralists who claim to have bought land there are being resisted by the local bagungu on the ground that the land involved is communal land to which the pastoralists could not have obtained legal ownership.
The issue here is whether the balalo or any other person can legally acquire an interest in what is claimed to be communal land. The Land Act defines customary tenure as “a system of land tenure regulated by customary rules which are limited in their operation to a particular description or class of persons the incidents of which are described in section 4 of the Act.â€
Section 4 instead of enumerating incidents of customary tenure actually sets out what amounts to this type of tenure. Among other things, this includes a form of tenure applicable to a specific area of land and a specific description or class of persons or a form which provides for communal ownership and use of land.
On first brush therefore the bagungu can claim to be owners of the land in question if they can bring themselves within the definition of what amounts to communal land ownership.
According to the Land Act a community for this purpose means “an indigenous community of Uganda as provided for in the Third Schedule to the constitution, or any clan or sub-clan of any such indigenous community communally occupying, using or managing land.â€
This definition raises some intricate questions such as who determines the extent of the land to be regarded as communal land and through what processes such determination can be made. Luckily the land Act answers these questions.
Any person, family or community holding land under customary tenure on former public land may acquire a certificate of customary ownership in respect of that land by applying for a certificate of customary ownership through the parish land committee. On receipt of the application the committee is required to carry out a number of things including the determination of the boundaries. After the committee has carried out its duties it is supposed to make a report to the district land board which issues certificates of occupancy or ownership.
In order to protect the interest contained in such a certificate the law provides that the certificate is registrable under the provisions of the Registrations of Titles Act just like mailo, freehold and leasehold interests. The advantage of registration is that the first interest to be registered is protected as against other claimants and everybody is put on notice of the fact of one’s ownership. All these factors come into play in considering the legal position of the problem in Bulisa.
Firstly, for the Bagungu to claim customary ownership of the land, they must show that they have a certificate of occupancy to the land in question. Secondly, such certificate must be registered under the provisions of the Registration of Titles Act otherwise it would be a defeasible interest.
If the certificate is not there the law would regard them as putative owners of the land and it seems probable that with the law as it stands, courts of law will not enforce an unregistered interest where there is clear provisions of law. As for the pastoralists’ claim that they bought the land comprising 30 miles, the question is from whom? For such a purchase to be recognised in law, one must show that one bought the land from a person or group of persons who had either a certificate of ownership or certificate of occupancy in the case of communal ownership. Anything short of this is not a purchase in law. It cannot be claimed that they bought a kibanja because a kibanja cannot extend to 30 square miles.
The problem in Bulisa is a legal one which can only be solved by following the provisions of the law by all concerned. It also serves as a wake-up call to other communities which still follow the customary form of land tenure to obtain the necessary certificates to them and to register them.
Otherwise the door will be left open to unscrupulous people to sell their land and cause them the kind of problems we are witnessing in Bulisa.
John Nagenda is travelling in the Usambara Mountains. He will be back next week.