By Timothy Makokha

LAND in any community is a thorny affair that requires careful handling. According to Harriet Busingye, the co-ordinator, Uganda Land Alliance, successful land systems address three basic issues.

They should recognise and protect control and access to and use of land by the public and recognise how traditional land tenure has evolved over time. They should also guide the tenure evolution by encouraging those changes that are beneficial and prevent those that are harmful.

The 1995 Constitution re-introduced the systems of land tenure that were in existence during the colonial governments. They include customary, mailo, freehold and leasehold tenure systems.

Mailoland
This tenure system is peculiar to Buganda. It was created by the 1900 Buganda Agreement. The agreement gave chunks of land to some individuals to own in perpetuity.
The Buganda royal family received 958sq miles as private mailo, chiefs and other notables received 8sq miles each. Peasants, previously on the land, became tenants and had to pay busuulu (rent) to the landlords. The owner of mailoland was entitled to a certificate of title.

Freehold
This land tenure system existed first in western Uganda. It is a system of owning land in perpetuity and was initially set up by agreement between kingdoms and the colonial government. Later, the Uganda Land Commission (ULC) also started granting freehold land. Most of this land was given to church missionaries and academic institutions. Today, most public schools own land under this tenure.

Leasehold
This is a system of owning land on contract. A grant of land is usually made by an owner of freehold, mailoland or by the Uganda Land Commission to another person for a specified period of time and on certain conditions, which include, but limited to payment of rent. People and organisations leasing for a period of three years or more are entitled to a certificate of title. Most of the land the government is selling to investors falls under this tenure system.

Customary
This land tenure system as specified in the 1995 Constitution and the 1998 Land Act has two categories. The system is predominant in northern and eastern Uganda, while individual, family and clan customary tenure is prevalent in central, western, parts of the north and south- western Uganda.
Before 1995, customary tenure though not legally recognised, continued to exist as a system of holding unregistered land by customary rules. Customary tenants could occupy mailo-land, freehold, leasehold or public land. They occupied such land by either growing crops or exercising
customary rights to look after it. In fact, kibanja became synonymous with customary occupants.
The land, which was not owned either in freehold or by way of mailo, was known as public land under the trust of ULC. Out of public land, leases of up to 99 years and freeholds are granted.

Status of the customary tenant
A customary tenant on public land had to give consent before land he was occupying was granted either in freehold or leasehold by ULC. He was entitled to compensation and notice of six months before the land he occupied could be taken. However, a customary tenant on mailo-land did not enjoy equal rights.

The customary land system in Uganda today
The system of land holding by its very nature is very complex and varies from community to community. However, the rights to control, use and own land are derived from being a member of a given community. Such rights are retained by observing certain obligations in the community. Different landholdings exist in Uganda under the customary land tenure system. They include:

Communal land – Here, the household is the primary owner of the land and may include extended members of the family. Communal land in Uganda includes gardens, grazing areas, burial grounds and hunting areas known as common property regimes. Communal land is especially found in northern Uganda. The common property regime is especially utilised by the pastoralist communities.

No specific ownership rights of control are conferred on users. Control and ownership are through the family, clan or the community.

Individual, family or clan customary tenure – The system emphasises use rather than ownership. Male elders are the custodians of customary land in most communities and determine distribution of the land. However, the family has more control in the land utilisation rather the community and different individuals in the family are allocated land.

In many places, customary land has become more individualised and incidents of sale are high. In some ethnic groups, before a sale is made, clan members have to be consulted. However, the institution is weakening and with the increasing poverty levels, distress land sales are bursting the seams.

Legal provisions
The 1995 Constitution was the first document to ever recognise customary tenure as a land tenure system. Article 237 of the Constitution recognises a majority of Ugandans who live on customary land as landowners.

The Land Act of 1998 also grants them rights through four principle mechanisms. It states that land in Uganda belongs to citizens and they hold it in accordance with the four land tenure systems, i.e. mailo, freehold, leasehold and customary land.

The act grants tenure rights to customary holders of land, who can process certificates of customary ownership, thus gaining immediate titles to the land they occupy. Certificates of this nature can be obtained at three levels: individuals, family or community.

The certificate of ownership is primary evidence of customary occupation. It confers upon the holder the right to lease, mortgage (use as collateral security in banks) and even sell.

The act also permits holders of land in customary tenure to convert it to freehold tenure with or without the certificate of customary ownership.

Customary land ownership also provides for communal land ownership through associations. A communal land association can be formed by a group of persons with the purpose of communal ownership and management of land. The association can be asked to set aside land for common use by members of the group.

Individuals may apply for a certificate of customary ownership for land made available to them by the association for occupation and use of that individual or household.