Land Bill is a step backwards
Apr 22, 2008
THE Land (Amendment) Bill 2007, is probably Uganda’s most controversial Bill after the Domestic Relations Bill. Its object is essentially to enhance the rights and interests of lawful and bona fide occupants on registered land.
By Anthony Kakooza
THE Land (Amendment) Bill 2007, is probably Uganda’s most controversial Bill after the Domestic Relations Bill. Its object is essentially to enhance the rights and interests of lawful and bona fide occupants on registered land.
The crux of the controversy in the Land Act and the Land Bill is the clash of interests between of registered proprietors vis-a-vis those of lawful or bona fide occupants.
The statutory structure of land rights has always tended to favour individualised ownership rights. After all, the interests of the registered proprietor are superior to any other interests.
The Land Bill is, however, generally attempting to break away from this trend by focusing on the occupants or tenants on the land and ignoring the rights and interests of the landlords. It is on this premise that the Bill has been said to be in conflict with the Constitutional provision on the right to ownership of property.
By proposing that lawful and bona fide occupants should only be evicted for non-payment of ground rent, the Land Bill appears to interfere with the laws of contract inter parties where, for instance, other circumstances may have arisen that call for eviction of the occupants by the landlord.
Securing commercial transactions on the land
Financial institutions have also come out with concerns over land titles that can be used as collateral for a business or personal loan.
Where the Bill seeks to strengthen the position of occupants on land registered under the name of another person, financial institutions would get cold feet in accepting such land titles as collateral, simply because the registered proprietor’s interests on the land appear to be overridden by the interests of the occupants thereon.
The freedom of contracting has thus also been curtailed and the registered proprietor can no longer feel the security of indefeasibility of the title (state-guaranteed title).
What constitutes “interest in land�
The Bill in Clause 2, 32B, provides for persons claiming interest in land under customary tenure to be evicted only by court.
This would be calling for endless litigation where, first of all, it is difficult to establish what the perimeters are for “persons claiming interestâ€. Anyone can come out and claim “an interest in land†on another’s property which would inevitably lead to a hoard of land cases for the courts to deal with before it can be determined whether court eviction should follow or not.
Determination of rent
The Bill provides for controlled payment of ground rent. This is reminiscent of the repealed Busullu and Envujjo law of 1928, and the Ankole and Toro Land Lord and Tenant laws of 1937.
It is risky to give overriding authority to the minister to determine which ground rent is payable without due consideration of the value, usage or location of the property. Furthermore, restricting the landlord’s authority to determine rent is likely to ruin the relationship between landlords and their customary tenants. Land lords and district land boards should be allowed to determine ground rent payable without the involvement of the minister.
Is there need for the Bill?
The Memorandum to the Bill states that its purpose is to “enhance the protection of lawful and bona fide occupants and occupants on customary land from wide spread evictions from landâ€.
Most evictions are carried out because landlords fail to come to some form of agreement with the occupants on their land over rent. The Registration of Titles Act and the Land Act provide for such situations. Landlords opt for forceful eviction for a variety of reasons, but also interestingly because they either do not know that they can get such compensation from the government or because they are not aware of the existence of an assurance fund that can be obtained from government.
Another concern is with regard to the issue of evictions of the occupants by court order. Francis Bwengye poses a question: Can the person be compensated when evicted? He argues focusing on the perspective of a bona fide and customary tenant on registered land who has spent some years cultivating and grazing on that land until he or she is evicted.
He states that giving them a sum of money while leaving them homeless and destitute can trigger off sour conflict and offends the principle of equity and social justice. The Government, therefore, has an important role to play by assisting in the resettlement of those evicted on alternative land as opposed to relying on an ineffective land fund as means of compensating them.
By proposing to criminalise some actions within the Land Act, the Bill seeks to import criminal sanctions into an environment that has hitherto been regulated by civil obligations.
There are civil law procedures that can be followed to protect the rights and interests of those wrongfully evicted rather than imposing criminal sanctions in the process.
Before the Bill is debated, there should be a national land policy to guide on how land should be owned, managed, administered and utilised. Without a sound land policy in place, we will continue to have definitional problems as to most of the key concerns in Uganda’s land tenure systems.
This is why we still have difficulty placing occupants on land within the contexts of lawful, bona fide or customary. Rather than amend the Land Act, the focus should be on the reasons why the Act continues to stagnate in its efficacy. The main reason is because of inadequate funding from the Government to cater for the operations of the District Land Boards.
The writer is an advocate and lecturer of Law.
The article is an edited version of a paper he presented at a seminar recently
THE Land (Amendment) Bill 2007, is probably Uganda’s most controversial Bill after the Domestic Relations Bill. Its object is essentially to enhance the rights and interests of lawful and bona fide occupants on registered land.
The crux of the controversy in the Land Act and the Land Bill is the clash of interests between of registered proprietors vis-a-vis those of lawful or bona fide occupants.
The statutory structure of land rights has always tended to favour individualised ownership rights. After all, the interests of the registered proprietor are superior to any other interests.
The Land Bill is, however, generally attempting to break away from this trend by focusing on the occupants or tenants on the land and ignoring the rights and interests of the landlords. It is on this premise that the Bill has been said to be in conflict with the Constitutional provision on the right to ownership of property.
By proposing that lawful and bona fide occupants should only be evicted for non-payment of ground rent, the Land Bill appears to interfere with the laws of contract inter parties where, for instance, other circumstances may have arisen that call for eviction of the occupants by the landlord.
Securing commercial transactions on the land
Financial institutions have also come out with concerns over land titles that can be used as collateral for a business or personal loan.
Where the Bill seeks to strengthen the position of occupants on land registered under the name of another person, financial institutions would get cold feet in accepting such land titles as collateral, simply because the registered proprietor’s interests on the land appear to be overridden by the interests of the occupants thereon.
The freedom of contracting has thus also been curtailed and the registered proprietor can no longer feel the security of indefeasibility of the title (state-guaranteed title).
What constitutes “interest in land�
The Bill in Clause 2, 32B, provides for persons claiming interest in land under customary tenure to be evicted only by court.
This would be calling for endless litigation where, first of all, it is difficult to establish what the perimeters are for “persons claiming interestâ€. Anyone can come out and claim “an interest in land†on another’s property which would inevitably lead to a hoard of land cases for the courts to deal with before it can be determined whether court eviction should follow or not.
Determination of rent
The Bill provides for controlled payment of ground rent. This is reminiscent of the repealed Busullu and Envujjo law of 1928, and the Ankole and Toro Land Lord and Tenant laws of 1937.
It is risky to give overriding authority to the minister to determine which ground rent is payable without due consideration of the value, usage or location of the property. Furthermore, restricting the landlord’s authority to determine rent is likely to ruin the relationship between landlords and their customary tenants. Land lords and district land boards should be allowed to determine ground rent payable without the involvement of the minister.
Is there need for the Bill?
The Memorandum to the Bill states that its purpose is to “enhance the protection of lawful and bona fide occupants and occupants on customary land from wide spread evictions from landâ€.
Most evictions are carried out because landlords fail to come to some form of agreement with the occupants on their land over rent. The Registration of Titles Act and the Land Act provide for such situations. Landlords opt for forceful eviction for a variety of reasons, but also interestingly because they either do not know that they can get such compensation from the government or because they are not aware of the existence of an assurance fund that can be obtained from government.
Another concern is with regard to the issue of evictions of the occupants by court order. Francis Bwengye poses a question: Can the person be compensated when evicted? He argues focusing on the perspective of a bona fide and customary tenant on registered land who has spent some years cultivating and grazing on that land until he or she is evicted.
He states that giving them a sum of money while leaving them homeless and destitute can trigger off sour conflict and offends the principle of equity and social justice. The Government, therefore, has an important role to play by assisting in the resettlement of those evicted on alternative land as opposed to relying on an ineffective land fund as means of compensating them.
By proposing to criminalise some actions within the Land Act, the Bill seeks to import criminal sanctions into an environment that has hitherto been regulated by civil obligations.
There are civil law procedures that can be followed to protect the rights and interests of those wrongfully evicted rather than imposing criminal sanctions in the process.
Before the Bill is debated, there should be a national land policy to guide on how land should be owned, managed, administered and utilised. Without a sound land policy in place, we will continue to have definitional problems as to most of the key concerns in Uganda’s land tenure systems.
This is why we still have difficulty placing occupants on land within the contexts of lawful, bona fide or customary. Rather than amend the Land Act, the focus should be on the reasons why the Act continues to stagnate in its efficacy. The main reason is because of inadequate funding from the Government to cater for the operations of the District Land Boards.
The writer is an advocate and lecturer of Law.
The article is an edited version of a paper he presented at a seminar recently