Buganda needs fair and balanced land law
Nov 27, 2007
THE law that regulates the relationship between tenants and landlords generally, and particularly that between customary kibanja holders/lawful occupants and “bonafide†tenants in Buganda, has been a subject of much controversy since the Land Act 1998 came into force.
BY APOLLO MAKUBUYA
THE law that regulates the relationship between tenants and landlords generally, and particularly that between customary kibanja holders/lawful occupants and “bonafide†tenants in Buganda, has been a subject of much controversy since the Land Act 1998 came into force.
On one hand, the Government seeks to address the landlessness created under the colonial epoch, and argues that the law needs to protect the tenants from excessive annual land rentals and unlawful evictions. Indeed, under its proposed amendment to the Land Act, it seeks to further entrench the protection of the registered land.
On the other hand, landlords including entities such as the Kingdom of Buganda and religious bodies, consider that the law unduly and unfairly treats them by fixing unrealistic and meaningless land rentals, and giving far too many rights — including an absolute entitlement to a ‘Certificate of Occupancy’.
With regard to the proposed land amendments favouring the tenants, landlords consider that the proposal to vest the Minister of Lands with powers to determine ground rent; to grant certificates of occupancy and to grant powers to tenants to sell or sub-divide their land holding on registered land, as completely unacceptable. They argue that it undermines their constitutional rights on land; greatly distorts the kiganda cultural/traditional and customary norms on land; erodes the constitutional functions and powers of the judiciary; devalues land and ultimately contributes to further confusion and anarchy in the country.
In view of the above, there is a clear and urgent need that a balanced and fair law regulating tenants and landlords be developed within the overall framework of a national land policy. And the emphasis in the process needs to be consultative and participatory. In the case of land in Buganda, there is need for a special law, given the unique historical, customary and traditional norms attendant to mailo land therein.
It is hoped that the following principles on a new landlord and tenant law in Buganda would help achieve sobriety, equity and harmony.
Annual land rent
It is proposed that the law should set a ceiling/maximum annual rent provided that it is reasonable and not nominal. It should take into account the location, size and user of the land.
Under such a law, the landlord may apply to court to charge additional rent, depending on the user and size of the area. Similarly, the tenant may apply to the court to reduce annual ground rent as the case may be.
Rights of the tenant
Upon payment of the rent, the tenant should be entitled to quiet possession; to cultivate and sell crops without hindrance of the landlord.
It will be an offense for a landlord to charge in excess of the rent provided by law; to prevent the tenant from cultivating the land or to disturb the quiet possession of the tenant.
Bonafide occupants
The law creating bonafide occupants should be repealed.
Powers of the minister of lands in Land in land disputes
The Minister of Lands should have no jurisdiction whatsoever to interfere in, or resolve disputes between tenants and landlords.
Certificate of occupancy or leases
The landlord should give a receipt — not a certificate of occupancy to the tenant. This will militate against the creation of competing titles and ownership of land. It should be clear that the land has one owner, although someone else may have user rights on it. If the tenant wishes to have a more secure title on the land, he or she should secure a lease on the land. With the legal lease, the tenants holding on the land shall cease to be of a customary nature.
Defaults in payment of rent
If a tenant defaults in payment of rent for six months, then the landlord may sue the tenant for the rent due.
Tenant’s rights to sublet sell or assign land rights
The tenant may only sell or sublet a piece of his or her holding to another person with the permission of the landlord. The landlord’s permission should not be unreasonably withheld.
Application of customary law on Kibanja holdings
Tenants shall hold land in accordance with the accepted customary laws on bibanja in Buganda.
Landlord’s right of entry
A landlord who wishes to re-enter or consolidate his land, shall give the tenant notice in writing to quit and the tenant shall quit within one year of the receipt of the notice. In such a case, the landlord shall pay compensation to the tenant for any permanent crops.
Any disputes on the amount of compensation shall be resolved by the courts. Where a tenant abandons his holdings for a period of six months, the landlord may re-enter the land with no obligation for compensation.
Tenant’s rights to vacate land
A tenant may leave the land by giving at least three months notice to the landlord.
Charge of landlords/ownership of land
No change of ownership by the landlord shall affect the rights and obligations of the tenant.
Eviction of tenants
A tenant shall not be evicted unless there is an order by a court of competent jurisdiction.
An eviction order may be made only for good reasons as the court may determine. In making an eviction order, the court shall take into consideration any claims for compensation by the tenant; value of improvements on the land. No eviction should be made unless and until there has been payment of such compensation.
In the case of Buganda, the success of the above proposals will also entail the following:
-Consultations with all the relevant stake holders
-The return of all Buganda’s land that was confiscated by the Obote government
-Restoration of a federal system of government
-The maintenance of a mailo land tenure system
-The de-politicisation and de-militarisation of land matters as well as the diligent application of the law in all parts of Uganda in resolving issues such as the balaalo saga.
The writer is the Ag Attorney General of the Buganda Kingdom
THE law that regulates the relationship between tenants and landlords generally, and particularly that between customary kibanja holders/lawful occupants and “bonafide†tenants in Buganda, has been a subject of much controversy since the Land Act 1998 came into force.
On one hand, the Government seeks to address the landlessness created under the colonial epoch, and argues that the law needs to protect the tenants from excessive annual land rentals and unlawful evictions. Indeed, under its proposed amendment to the Land Act, it seeks to further entrench the protection of the registered land.
On the other hand, landlords including entities such as the Kingdom of Buganda and religious bodies, consider that the law unduly and unfairly treats them by fixing unrealistic and meaningless land rentals, and giving far too many rights — including an absolute entitlement to a ‘Certificate of Occupancy’.
With regard to the proposed land amendments favouring the tenants, landlords consider that the proposal to vest the Minister of Lands with powers to determine ground rent; to grant certificates of occupancy and to grant powers to tenants to sell or sub-divide their land holding on registered land, as completely unacceptable. They argue that it undermines their constitutional rights on land; greatly distorts the kiganda cultural/traditional and customary norms on land; erodes the constitutional functions and powers of the judiciary; devalues land and ultimately contributes to further confusion and anarchy in the country.
In view of the above, there is a clear and urgent need that a balanced and fair law regulating tenants and landlords be developed within the overall framework of a national land policy. And the emphasis in the process needs to be consultative and participatory. In the case of land in Buganda, there is need for a special law, given the unique historical, customary and traditional norms attendant to mailo land therein.
It is hoped that the following principles on a new landlord and tenant law in Buganda would help achieve sobriety, equity and harmony.
Annual land rent
It is proposed that the law should set a ceiling/maximum annual rent provided that it is reasonable and not nominal. It should take into account the location, size and user of the land.
Under such a law, the landlord may apply to court to charge additional rent, depending on the user and size of the area. Similarly, the tenant may apply to the court to reduce annual ground rent as the case may be.
Rights of the tenant
Upon payment of the rent, the tenant should be entitled to quiet possession; to cultivate and sell crops without hindrance of the landlord.
It will be an offense for a landlord to charge in excess of the rent provided by law; to prevent the tenant from cultivating the land or to disturb the quiet possession of the tenant.
Bonafide occupants
The law creating bonafide occupants should be repealed.
Powers of the minister of lands in Land in land disputes
The Minister of Lands should have no jurisdiction whatsoever to interfere in, or resolve disputes between tenants and landlords.
Certificate of occupancy or leases
The landlord should give a receipt — not a certificate of occupancy to the tenant. This will militate against the creation of competing titles and ownership of land. It should be clear that the land has one owner, although someone else may have user rights on it. If the tenant wishes to have a more secure title on the land, he or she should secure a lease on the land. With the legal lease, the tenants holding on the land shall cease to be of a customary nature.
Defaults in payment of rent
If a tenant defaults in payment of rent for six months, then the landlord may sue the tenant for the rent due.
Tenant’s rights to sublet sell or assign land rights
The tenant may only sell or sublet a piece of his or her holding to another person with the permission of the landlord. The landlord’s permission should not be unreasonably withheld.
Application of customary law on Kibanja holdings
Tenants shall hold land in accordance with the accepted customary laws on bibanja in Buganda.
Landlord’s right of entry
A landlord who wishes to re-enter or consolidate his land, shall give the tenant notice in writing to quit and the tenant shall quit within one year of the receipt of the notice. In such a case, the landlord shall pay compensation to the tenant for any permanent crops.
Any disputes on the amount of compensation shall be resolved by the courts. Where a tenant abandons his holdings for a period of six months, the landlord may re-enter the land with no obligation for compensation.
Tenant’s rights to vacate land
A tenant may leave the land by giving at least three months notice to the landlord.
Charge of landlords/ownership of land
No change of ownership by the landlord shall affect the rights and obligations of the tenant.
Eviction of tenants
A tenant shall not be evicted unless there is an order by a court of competent jurisdiction.
An eviction order may be made only for good reasons as the court may determine. In making an eviction order, the court shall take into consideration any claims for compensation by the tenant; value of improvements on the land. No eviction should be made unless and until there has been payment of such compensation.
In the case of Buganda, the success of the above proposals will also entail the following:
-Consultations with all the relevant stake holders
-The return of all Buganda’s land that was confiscated by the Obote government
-Restoration of a federal system of government
-The maintenance of a mailo land tenure system
-The de-politicisation and de-militarisation of land matters as well as the diligent application of the law in all parts of Uganda in resolving issues such as the balaalo saga.
The writer is the Ag Attorney General of the Buganda Kingdom