Land Amendment BiIl to protect tenants from evictions
Mar 11, 2009
The Land Amendment Bill, 2007, which is now before the committee of Physical Infrastructure of Parliament has attracted public attention ever since it was gazetted on December 28, 2007.
By Daniel Omara Atubo
The Land Amendment Bill, 2007, which is now before the committee of Physical Infrastructure of Parliament has attracted public attention ever since it was gazetted on December 28, 2007.
The intentions of introducing this bill were genuine in that the Government wants to protect a category of voiceless and vulnerable people who have suffered the brunt of incessant evictions on a daily basis.
The problem of evictions — whether illegal or lawful looms amongst vast numbers of people, especially areas where the landlord-tenant phenomenon exists. These include Buganda, Bunyoro, Bugisu, Ankole and Toro.
Even on customary land, the most of which is not registered, there have been unscrupulous persons who have acquired or wish to acquire titles without the knowledge of the customary owners. In such instances, the rightful customary owners need protection.
We all agree that there is need to have a law to protect tenants against illegal evictions carried out by unscrupulous land owners since section 92 of the Land Act does not provide penalties for landlords who unfairly evict tenants.
It is quite clear from the provisions of Section 64(2) of the Registration of Titles Act that every registered proprietor of mailo; leasehold and freehold land who holds a certificate of title thereto is subject to several unregistered interests in land which include the interests of customary tenants or tenants by occupancy.
In Uganda, such laws have existed before and these include: the Busuulu and Envujjo law, 1928; the Toro Landlord and Tenant Law, 1937; and the Ankole Land lord and Tenant Law, 1937. These laws were abolished in 1975 under the Land Reform Decree. After 1975, land became free for all and there was no respect for landlords anymore.
When in 1995, four land tenure systems were re-introduced, eviction of tenants by landlords started and has now become a menace, as a result of many factors, including the craze in estates development, commercialised farming and buyers of mortgaged land where clients have defaulted.
What is the problem?
Many poor and voiceless tenants countrywide are rendered landless and their property destroyed by landlords without following the right procedures of evictions.
Tenants are regarded as trespassers on the land they have lived on, hence denying them their land rights and fair compensation. Individuals in the Judiciary, law enforcement agencies, the army and land administration institutions sometimes abet and participate in these illegal acts, to give them a legal face.
It has been observed that the majority of land evictions are mainly on tenanted land in the peri-urban areas, where the land value is high. In rural areas, evictions have mostly been on leased land with a potential for commercial agriculture.
The main causes of land evictions are:
Registered land owners not disclosing to the purchasers the tenants on the land to be purchased;
Tenants are not given the opportunity to buy out rights of the registered owners;
Unscrupulous Landlords conniving with some individuals in the law enforcement agencies and Land Administration institutions to evict tenants;
Lack of adequate knowledge of the law on the rights of the land owner and tenants;
Lack of a national land policy framework to address Ugand’s land question, including evictions and a mechanism for dispute resolution and appeal.
The consequences of these evictions are that:
Majority of lawful and bonafide tenants have become landless and homeless, with no means of fending for themselves;
The economic productivity and livelihoods of the evicted persons is disrupted;
Insecurity in the affected localities, including violence and disharmony in affected areas.
In a country where the registered owners of land are estimated to be 600,000 and tenants are estimated to be over 20 million, the Government cannot turn a blind eye as the majority of the population is suffering.
Evidence of evictions
In some cases, the landlords have evicted as many as 400 families. This renders on average 2,800 people landless by one act of a landlord.
In the last two years, such evictions have been noted to have taken place in Wakiso district;
Kampala district (Bugolobi with 200 families being threatened with eviction, Makindye with 200 families evicted, Kigo with 200 families evicted, Kisenyi where 1000 tenants were evicted); Mityana district (20 families were evicted from Busujju); Mubende district (Bageza where 525 families were evicted, Myanzi where 2,000 families were evicted, Bukuya where 600 families were evicted, and Kitenga where 800 families were evicted); Mukono district (Wantoni where 50 families and a primary school were evicted); Kayunga district (in Kokootero where 400 families were evicted, and in Bbale subcounty where 2,000 families were evicted); Kyenjojo (Matiri where 30 families were evicted and Mwenge where 20 families were evicted); Butaleja (Doho over 200 families were evicted); and Mayuge district (where 12 families were evicted). These evictions have necessitated Government intervention.
During the nation wide consultation and sensitisation on the Land Amendment Bill in April 2008, the following concerns and recommendations were made:
i–There were numerous cases of misrepresentation of the Bill to the public that the Bill was meant to grab peoples’ land. The good intentions of the Bill were, therefore, overshadowed by land grabbing allegations;
ii–The public’s mind on the Bill was poisoned by the opponents of the Bill that it will be used to grab people and kingdoms’ land, which is not true;
iii–There was a wrong perception that the Bill intended to protect cattle-keepers, who would benefit from Section 32(B) by claiming interest on customary land. This section has since been re-drafted;
iv–There was a demand that the Bill should protect the people’s land rights, including protecting them from evictions;
v–The 30 days given to District Land Boards (DLBs) to determine Busuulu is a very short and unrealistic period. This has also been adjusted;
vi–The majority of Ugandans preferred that land disputes be settled through cultural institutions such as clan courts before ordinary law courts are used;
vii–There was dissatisfaction and lack of confidence in ordinary courts as they are perceived to be corrupt, expensive and slow to access justice. The courts are believed to benefit only the rich and powerful;
viii–The DLBs were accused of illegally leasing out customary land, thereby depriving the rightful customary owners of their rights, hence raising the need to include in the Bill a clause which nullifies such illegal transactions; and lastly,
ix–There was a demand for Government to prioritise consultations and approve a national land policy as soon as possible. The policy would ensure that all the land problems and Uganda’s land question are resolved once and for all.
Specifically for Buganda region, the key recommendations on the Land Amendment Bill were not to reject it, but were as follows:
lThe Central Government should harmonise its position on the Bill with Buganda Kingdom administration;
The Government should set up remedial measures to prevent further evictions in the interim period as development of the national land policy continues;
The Government should come up with a programme called “Bonna Badde ku Ttaka†to restore and/or ensure that all those unfairly evicted without adequate compensation have their land rights restored;
Courts should always come down and inspect the land in dispute before passing judgment;
The seven years’ imprisonment for the landlords be increased to 10 years;
There is need for the proposed law to be made retrospective;
The law should be uniform with regard to punishments to the landlord and tenant. Both of them should be jailed for the same period;
There is need to provide for avenues of appeal if the Annual Nominal Ground Rent is not acceptable to either the tenant or the landlord;
The law needs to specifically provide for punishment to armed personnel who facilitate and/or participate in unlawfully evicting tenants.
Justification of the Bill
Cabinet considered the report and made changes in the original Bill. The main object of the Bill, therefore, is to stop evictions on registered and customary land by enhancing the existing legal provisions of the 1998 Land Act.
The security of occupancy of tenants on registered land is guaranteed by Article 237(8) of the Constitution and Section 31 of the Land Act. Such tenants are deemed to be tenants of the registered owner.
As mentioned earlier, Section 64(2) of the RTA makes any land included in any certificate subject to the interest of any tenant of the land, though it may not be specially notified as an encumbrance on the certificate.
For purposes of clarity, this Bill does not deal with issues of restitution of assets and properties of traditional rulers. Neither does it deal with the issue of the ‘9,000sq miles’, Federo, Balaalo, environmental degradation and anti social behaviour, as has been mentioned by opponents of the Bill. There is nothing in the Land Act that mentions the above and, therefore, all those issues cannot be affected or effected by an amendment to the Land Act. Those areas mentioned are, therefore, not subject to this Bill.
The Bill does not protect unknown persons who settle on someone’s land without their knowledge or consent.
The main focus of the Bill is:
a–To provide for powers of the minister to fix the Annual Nominal Ground Rent: This issue is not a creation of the LAB, but already exists in Section 31(3) of the Land Act (CAP 227). Although this amount is nominal, Parliament did not set the amount, but left it to the discretion of DLBs, which, unlike in the Busuulu and Envujjo law of 1928, was set at sh10. It is argued that the said amount in 1928 was reasonable. Since 1998, these DLBs have either failed, neglected or ignored their duty.
b–To provide for eviction only by court order;
c–To provide for criminalisation of unlawful eviction and state the consequences of illegal land allocations or other transactions entered into by DLBs;
d–To provide for a first option to purchase where multiple rights exist; and
e–To provide for introduction of criminalisation of landlords actions and enhancement of penalties for tenants and trespassers. A Landlord who does not intend to unilaterally evict lawful and /or bonafide occupants will not be affected by the provisions of the Bill. But those interested in illegal evictions, including those driven by economic reasons, will be affected by the amendments. The solution, therefore, is not to reject the Bill, but to recommend it’s improvement in the interests of both the landlord and the tenants, as an interim intervention, pending the conclusion of the exercise on development of a national land policy and a comprehensive land law thereafter.
We are all aware of the historical injustices related to land that stretch back to the colonial era and which resulted in the disinheritance and re-allocation of land for communities, clans and individuals. These injustices require specific interventions to redress them. The Land Amendment Bill is one of such interim measure to protect tenants, as the country awaits a national land policy.
Even then, I want to re-assure Buganda that the abolition of the Mailo land tenure system is no longer a feasible option for the national land policy, but instead, the Government will support alternative measures which will resolve the issues of multiple rights on the same piece of land harmonious ways acceptable to both landlords and tenants in solving the current massive evictions.
Since Buganda is made up of many tribes that live together in harmony, it is important that the mature pro-people attitude of co-existence, which promotes integration of all Ugandans, is strengthened. This is because it is essential for harmonious development and growth of the economy. Article 29 (2) of the Constitution gives the right to all Ugandans, regardless of tribe to reside and settle in any part of the country. But of course, this must be exercised with caution by respecting the rights of others. I encourage Buganda leaders to shoulder this spirit of nationalism because it provides a basis for national unity and a positive harmonious way of living.
The writer is the Minister of Lands, Housing and Urban development
The Land Amendment Bill, 2007, which is now before the committee of Physical Infrastructure of Parliament has attracted public attention ever since it was gazetted on December 28, 2007.
The intentions of introducing this bill were genuine in that the Government wants to protect a category of voiceless and vulnerable people who have suffered the brunt of incessant evictions on a daily basis.
The problem of evictions — whether illegal or lawful looms amongst vast numbers of people, especially areas where the landlord-tenant phenomenon exists. These include Buganda, Bunyoro, Bugisu, Ankole and Toro.
Even on customary land, the most of which is not registered, there have been unscrupulous persons who have acquired or wish to acquire titles without the knowledge of the customary owners. In such instances, the rightful customary owners need protection.
We all agree that there is need to have a law to protect tenants against illegal evictions carried out by unscrupulous land owners since section 92 of the Land Act does not provide penalties for landlords who unfairly evict tenants.
It is quite clear from the provisions of Section 64(2) of the Registration of Titles Act that every registered proprietor of mailo; leasehold and freehold land who holds a certificate of title thereto is subject to several unregistered interests in land which include the interests of customary tenants or tenants by occupancy.
In Uganda, such laws have existed before and these include: the Busuulu and Envujjo law, 1928; the Toro Landlord and Tenant Law, 1937; and the Ankole Land lord and Tenant Law, 1937. These laws were abolished in 1975 under the Land Reform Decree. After 1975, land became free for all and there was no respect for landlords anymore.
When in 1995, four land tenure systems were re-introduced, eviction of tenants by landlords started and has now become a menace, as a result of many factors, including the craze in estates development, commercialised farming and buyers of mortgaged land where clients have defaulted.
What is the problem?
Many poor and voiceless tenants countrywide are rendered landless and their property destroyed by landlords without following the right procedures of evictions.
Tenants are regarded as trespassers on the land they have lived on, hence denying them their land rights and fair compensation. Individuals in the Judiciary, law enforcement agencies, the army and land administration institutions sometimes abet and participate in these illegal acts, to give them a legal face.
It has been observed that the majority of land evictions are mainly on tenanted land in the peri-urban areas, where the land value is high. In rural areas, evictions have mostly been on leased land with a potential for commercial agriculture.
The main causes of land evictions are:
Registered land owners not disclosing to the purchasers the tenants on the land to be purchased;
Tenants are not given the opportunity to buy out rights of the registered owners;
Unscrupulous Landlords conniving with some individuals in the law enforcement agencies and Land Administration institutions to evict tenants;
Lack of adequate knowledge of the law on the rights of the land owner and tenants;
Lack of a national land policy framework to address Ugand’s land question, including evictions and a mechanism for dispute resolution and appeal.
The consequences of these evictions are that:
Majority of lawful and bonafide tenants have become landless and homeless, with no means of fending for themselves;
The economic productivity and livelihoods of the evicted persons is disrupted;
Insecurity in the affected localities, including violence and disharmony in affected areas.
In a country where the registered owners of land are estimated to be 600,000 and tenants are estimated to be over 20 million, the Government cannot turn a blind eye as the majority of the population is suffering.
Evidence of evictions
In some cases, the landlords have evicted as many as 400 families. This renders on average 2,800 people landless by one act of a landlord.
In the last two years, such evictions have been noted to have taken place in Wakiso district;
Kampala district (Bugolobi with 200 families being threatened with eviction, Makindye with 200 families evicted, Kigo with 200 families evicted, Kisenyi where 1000 tenants were evicted); Mityana district (20 families were evicted from Busujju); Mubende district (Bageza where 525 families were evicted, Myanzi where 2,000 families were evicted, Bukuya where 600 families were evicted, and Kitenga where 800 families were evicted); Mukono district (Wantoni where 50 families and a primary school were evicted); Kayunga district (in Kokootero where 400 families were evicted, and in Bbale subcounty where 2,000 families were evicted); Kyenjojo (Matiri where 30 families were evicted and Mwenge where 20 families were evicted); Butaleja (Doho over 200 families were evicted); and Mayuge district (where 12 families were evicted). These evictions have necessitated Government intervention.
During the nation wide consultation and sensitisation on the Land Amendment Bill in April 2008, the following concerns and recommendations were made:
i–There were numerous cases of misrepresentation of the Bill to the public that the Bill was meant to grab peoples’ land. The good intentions of the Bill were, therefore, overshadowed by land grabbing allegations;
ii–The public’s mind on the Bill was poisoned by the opponents of the Bill that it will be used to grab people and kingdoms’ land, which is not true;
iii–There was a wrong perception that the Bill intended to protect cattle-keepers, who would benefit from Section 32(B) by claiming interest on customary land. This section has since been re-drafted;
iv–There was a demand that the Bill should protect the people’s land rights, including protecting them from evictions;
v–The 30 days given to District Land Boards (DLBs) to determine Busuulu is a very short and unrealistic period. This has also been adjusted;
vi–The majority of Ugandans preferred that land disputes be settled through cultural institutions such as clan courts before ordinary law courts are used;
vii–There was dissatisfaction and lack of confidence in ordinary courts as they are perceived to be corrupt, expensive and slow to access justice. The courts are believed to benefit only the rich and powerful;
viii–The DLBs were accused of illegally leasing out customary land, thereby depriving the rightful customary owners of their rights, hence raising the need to include in the Bill a clause which nullifies such illegal transactions; and lastly,
ix–There was a demand for Government to prioritise consultations and approve a national land policy as soon as possible. The policy would ensure that all the land problems and Uganda’s land question are resolved once and for all.
Specifically for Buganda region, the key recommendations on the Land Amendment Bill were not to reject it, but were as follows:
lThe Central Government should harmonise its position on the Bill with Buganda Kingdom administration;
The Government should set up remedial measures to prevent further evictions in the interim period as development of the national land policy continues;
The Government should come up with a programme called “Bonna Badde ku Ttaka†to restore and/or ensure that all those unfairly evicted without adequate compensation have their land rights restored;
Courts should always come down and inspect the land in dispute before passing judgment;
The seven years’ imprisonment for the landlords be increased to 10 years;
There is need for the proposed law to be made retrospective;
The law should be uniform with regard to punishments to the landlord and tenant. Both of them should be jailed for the same period;
There is need to provide for avenues of appeal if the Annual Nominal Ground Rent is not acceptable to either the tenant or the landlord;
The law needs to specifically provide for punishment to armed personnel who facilitate and/or participate in unlawfully evicting tenants.
Justification of the Bill
Cabinet considered the report and made changes in the original Bill. The main object of the Bill, therefore, is to stop evictions on registered and customary land by enhancing the existing legal provisions of the 1998 Land Act.
The security of occupancy of tenants on registered land is guaranteed by Article 237(8) of the Constitution and Section 31 of the Land Act. Such tenants are deemed to be tenants of the registered owner.
As mentioned earlier, Section 64(2) of the RTA makes any land included in any certificate subject to the interest of any tenant of the land, though it may not be specially notified as an encumbrance on the certificate.
For purposes of clarity, this Bill does not deal with issues of restitution of assets and properties of traditional rulers. Neither does it deal with the issue of the ‘9,000sq miles’, Federo, Balaalo, environmental degradation and anti social behaviour, as has been mentioned by opponents of the Bill. There is nothing in the Land Act that mentions the above and, therefore, all those issues cannot be affected or effected by an amendment to the Land Act. Those areas mentioned are, therefore, not subject to this Bill.
The Bill does not protect unknown persons who settle on someone’s land without their knowledge or consent.
The main focus of the Bill is:
a–To provide for powers of the minister to fix the Annual Nominal Ground Rent: This issue is not a creation of the LAB, but already exists in Section 31(3) of the Land Act (CAP 227). Although this amount is nominal, Parliament did not set the amount, but left it to the discretion of DLBs, which, unlike in the Busuulu and Envujjo law of 1928, was set at sh10. It is argued that the said amount in 1928 was reasonable. Since 1998, these DLBs have either failed, neglected or ignored their duty.
b–To provide for eviction only by court order;
c–To provide for criminalisation of unlawful eviction and state the consequences of illegal land allocations or other transactions entered into by DLBs;
d–To provide for a first option to purchase where multiple rights exist; and
e–To provide for introduction of criminalisation of landlords actions and enhancement of penalties for tenants and trespassers. A Landlord who does not intend to unilaterally evict lawful and /or bonafide occupants will not be affected by the provisions of the Bill. But those interested in illegal evictions, including those driven by economic reasons, will be affected by the amendments. The solution, therefore, is not to reject the Bill, but to recommend it’s improvement in the interests of both the landlord and the tenants, as an interim intervention, pending the conclusion of the exercise on development of a national land policy and a comprehensive land law thereafter.
We are all aware of the historical injustices related to land that stretch back to the colonial era and which resulted in the disinheritance and re-allocation of land for communities, clans and individuals. These injustices require specific interventions to redress them. The Land Amendment Bill is one of such interim measure to protect tenants, as the country awaits a national land policy.
Even then, I want to re-assure Buganda that the abolition of the Mailo land tenure system is no longer a feasible option for the national land policy, but instead, the Government will support alternative measures which will resolve the issues of multiple rights on the same piece of land harmonious ways acceptable to both landlords and tenants in solving the current massive evictions.
Since Buganda is made up of many tribes that live together in harmony, it is important that the mature pro-people attitude of co-existence, which promotes integration of all Ugandans, is strengthened. This is because it is essential for harmonious development and growth of the economy. Article 29 (2) of the Constitution gives the right to all Ugandans, regardless of tribe to reside and settle in any part of the country. But of course, this must be exercised with caution by respecting the rights of others. I encourage Buganda leaders to shoulder this spirit of nationalism because it provides a basis for national unity and a positive harmonious way of living.
The writer is the Minister of Lands, Housing and Urban development