Land ownership started way back before the 1900 agreement, but without registrable interest which would enable surveying and acquiring of titles
LAND | BUGANDA
By James Galabuzi Mukasa
The basic unit of the mailo system is a square mile, hence the derivation of mailo, which is also equivalent to 640 acres. The term is used in Uganda to describe a land tenure system that came into effect when the Buganda Kingdom signed the 1900 agreement. The Mailo system is predominantly in Buganda region and in some parts of Mbale, Bunyoro and Toro.
Two categories of mailo were introduced; official Mailo and private Mailo whereby official Mailo refers to land owned by the Kabaka, Katikkiro, Omulamuzi and Ssaza. Private Mailo referred to land owned by private individuals. The official Mailo was supposed to benefit specific offices such as Kabaka's office, Katikkiro, Ssaza and Gombolola Chiefs and therefore, not supposed to be sold but can be leased. The Kabaka was given 350 square miles, which is currently administered by the Buganda Land Board.
Private Mailo went to individuals, including the Kabaka as a person, royals, individual chiefs and some notables. There were 1,000 people who were given 8,000sqr miles. There was the 9,000 sq miles, which comprising lakes, rivers and hills, which was left untouched and vested in the Crown of England hence the name; Crown Land. At Uganda's independence in 1962, the colonial government instituted a statutory body called Buganda Land Board, where this land was vested. When the then president Milton Obote abolished kingdoms in Uganda, the Uganda Land Commission was created and it is where this land was administered.
As a result of the 1900 Buganda Agreement, a new phenomenon of occupants came into being since some land on which they lived, was registered in the names of land owners.
Land ownership started way back before the 1900 agreement, but without registrable interest which would enable surveying and acquiring of titles. Men would go for wars to defend their nation and their heroic reward by the king, who was the commander-in-chief was in terms of land and because in Ganda customs, people belong to specific clans and would have ancestries (Obutaka), therefore, another known land was that of Obutaka which would be allocated by the Kabaka to clan heads in trust of his clan. However, some people never had money to survey their land and that land remained on blue prints.
One of the most famous wars in Buganda was the religious war when Christians and Muslims fought in 1888 after Kabaka Kiwewa was installed against the Christians preference and victors were awarded gifts in terms of land. Therefore, people who are seen to have received free chunks of land as a result of Buganda Agreement, it should be known that they owned this land before without registrable interests.
After registrable interests were introduced in Uganda after Buganda agreement, apart from the categories of ownership stated above, many people bought land out of their own savings and this has been on going up to today. However, colonial masters realised a challenge that people had started to sell their land to foreigners who were predominantly whites. This was likely to create a native landlessness, especially in Buganda and a law was created stopping a non-native from acquiring land in perpetuity save for leasehold which law still stands today. I have examples of some people who were not chiefs by the Buganda agreement, but ended up investing in land and are some of the most big land owners in Uganda. Many pieces of land never had occupants and the reverse is true on same pieces of land.
Colonial masters levied taxes on land and had to be paid by all land owners. This forced land owners to interest people to occupy their land so that they would collect rent (Obusulu) to pay taxes and this is the other way people would occupy land. They would also collect a percentage of commercial commodities on land (Envujjo).
Rent collections were determined by each landowner according to his moods as at that time and this approach created a revolt against the land owners who at one time had hiked the rent. This revolt forced the colonial Government to regulate the relationship between the land Owners and Occupants by putting into force the Busulu and Envujjo law of 1927. Busulu meant; Ground Rent and Envujjo; a percentage levied on cash crops ground on land.
In this law, a Kibanja Owner was entitled to a domestic kibanja where his home was in perpetual ownership. This Kibanja never exceeded one acre and would be inherited by heir or widow at demise of owner. Beyond an acre, the occupant would cultivate economic crops on up to three acres of Mailo owner's land even without his permission. However, these interests were limited to crops grown on it. There was also a contractual Kibanja which would base on the terms agreed upon by the land owner and occupant (tenant).
This law existed for many years and people lived peacefully on land up to 1975 when President Idi Amin repealed it and made the "Land Reform Decree of 1975" where all Land was declared Public Land and
Land owned in freehold was converted to lease, held from the Government subject to development conditions.
The 1995 Constitution repealed the "Land Reform Decree of 1975" and restored land ownership with four tenure systems; mailo, customary, leasehold and freehold. The same constitution went ahead to describe who a lawful and Bonafide occupant on land is. The Bonafide occupant is a person who occupied land for 12 years and above before putting into force the 1995 Constitution.
This category of occupation seems to be difficult because it is highly politicised. Many people squatting on land tend to hide in this category and supported by residential district commissioners and the President's Office. This is done by the Government probably because of a wrong belief that current land owners inherited land from their fore fathers who were given free gifts which had occupants on them and without any work done.
The Government should consider the fact that some land was bought on savings of people who wanted to make their investments and also the fact that some current land owners just bought their land religiously a few years ago. It is not a crime for one to enjoy investments left behind by their grandparents like how a case would be to a descendant of an owner of an Arcade in Kampala city. It would be unfair if an occupant of a room in that arcade claims ownership of that room and at the same time, unfair for Government to deprive of the rights of the successor of the Arcade owner. By the time Buganda Agreement was signed, there were 1.6 million people in Buganda and there were no disputes over land.
The controversial Land Act of 1998 states further that there are specifically three grounds under which a lawful or bonafide occupant can be evicted by the land owner; failure to pay ground rate (which was sh1000 regardless of size of land) and selling their interest without giving the land owner first option and abandonment of Kibanja for a period of three years.
Interim recommendations by The Land Inquiry Commission to the President, that parallel free hold , referring to mailo and freehold land tenures should be fused into a single tenure to introduce clarity and cohesion does not make any difference because nothing will be solved. The owners will still have their titles and occupants will still stay in existence.
The fact is that mailo and Freehold ownership of land is the same because they both offer perpetual proprietorship of land. The difference is that mailo land tenure is part of the Ganda customs and traditions and that is why, details of proprietor are well described like proprietor's name, Father, Clan among others. Many non-Baganda have purchased mailo land and have filled the same details on the title. However, in some rare cases that the proprietor has no clan, there is a provision of skipping that space and continue with what is available. Therefore, the Government should consider maintaining the statuesque to avoid upheavals that may crop up.
A recommendation of a land fund would be good, but the challenge is its practicability. Still, the Government will have to first ascertain who a lawful and bonafide occupant is in order to benefit from that fund. Otherwise, Tom Dick and Harry should not benefit. Also, a high corruption rate in Uganda will jeopardise the entire process.
On the issue of customary freehold recommendation, this was done way back during the National Land Policy Conference where I participated as a mailo land delegate. It is pending implementation.
As Uganda Land Owners Association, we appeared before the Land Inquiries Commission on 25th September 2018, and in our observation, some commissioners had a bias on land ownership, especially in the central region because we received statements like; why is it that some people have a lot while others have little or nothing.
They forget that by nature, there will be the "Haves and Have nots"! The same commissioners seemed not aware of the Busulu & Envujjo law. We shared its contents and recommended its reinstatement because it specified an area of a Kibanja and gave protection to a Kibanja holder's interest like his homestead. They rejected the proposal. The fact is that it is unfair for the laws of Uganda to talk about occupancy on land without declaring the size of a Kibanja. People claim bibanja of even 50 acres and above which is ridiculous.
The understated were our presentations before the land inquiry commission.
Bonafide cccupant. This means a person who was on land for 12 years and above by the 1995 Constitution. We all agreed that this provision is unfair and should be revised.
Land tribunals should be reinstated but under ministry of justice. These tribunals were under the lands ministry.
That it is wrong for a person to occupy land without permission of owner. People are expected to identify and seek the land owner as stipulated in the Land Act.
Fraud in the lands registry where mailo register volume (MRV) are converted into freehold titles without knowledge of owners.
Land owners who fail to settle peacefully with the occupants and subsequently decide to sell their interests to rich people who secure court orders and evict the illegal occupants on land. Many times, not all the evictees who came to the public for sympathy are genuine. Some land owners have been killed by illegal occupants. Actually, legal occupants on land are in peaceful relationships with their land owners. The challenge is with the Malafide (illegal) occupants who have caused the current problems because they want to stay on land forcefully.
The government survey departments have been decentralised to districts, which is good but some district staff surveyors make subdivisions on people's land, produce fragmented titles without consent of land owners. These fragmented plots are subsequently transferred into fraudulent proprietors in different sequences at times on the same day in intervals of minutes, who eventually claim to be Bonafide Purchasers For Value Without Notice. By the time the owner realises this fraud, land may have changed hands in more than three proprietors and court of law may take ages to dispense justice.
Courts grant letters of administration to different individuals yet the court computerised mechanism would be in a position to avoid such anomaly. This makes one estate to have two administrators whereby one may be genuine and the other, a fraudster whose intentions may be to sell off this land as first as possible hence everlasting legal conflicts. Seeking justice in courts of law may take ages.
The Land Information System (LIS) has been penetrated by fraudsters who connive with some land officials who upload and display wrong information regarding proprietorship of some plots of land. When a buyer makes a search, details will reflect a fraudster as proprietor, which propagates a transaction. We recommended that a searched copy from the lands registry should bear at least three former owners other than the current system, which reflects only the current proprietor. In this regard, a buyer may have options for further inquiries.
In some cases, names of proprietors reflected in the computers are not in tandem with those in the Karamazo. Therefore, Karamazo being a custodian of all land transactions and despite the fact that many of them are in bad shape due to poor handling, they should be reconstructed and used to update the computers with proper information.
Since the advent of computerisation in land registries, land surveyors no longer go to fields to carry out field work. They prefer to use Google co-ordinates and come up with sketch plans. This system has produced land titles which are not accurate. Therefore, we recommended that all survey works presented to the district staff surveyors should have a filed work report with evidence of labeled mark stones planted.
Many titles are being issued at district levels without updating the Cadastral map at the surveys & mapping office at Entebbe. We recommended that all subdivisions made in the country should be entered at the Surveying & Mapping office at Entebbe for reference and record keeping purpose.
We recommended that immunity which is enjoyed by many civil servants should be checked because intentions and mistakes are made that have resulted into land conflicts. People have lost their land at the hands of fraudulent dealings within lands offices. Culprits should be held responsible for their deeds and reprimanded. Therefore, any lands officer found participating in any corrupt dealing should be held liable.
The challenge of land speculators who connive with Government officials to know where the government wants to construct a project and purchase such areas cheaply. Thereafter, they engage the Government in purchase negotiations, have made such transactions too expensive for Government. We recommended that land owners should be identified and involved at initial stages of land acquisition to avoid speculators and land brokers.
We recommended that land administration and management be made a statutory authority for ease of monitoring of land country wide.
State agencies such as resident district commisioners RDCs have frustrated court decisions and empowered illegal squatters on land. Court battles are instituted and take ages to be adjudicated upon. Court eviction orders are issued thereafter, and presented to DPCs as mandated by law for implementation. The DPCs refer you to RDCs who in turn ends up frustrating the holder. This results into forceful and unprofessional evictions which may end up claiming people's lives.
I strongly believe that this commission has a lot of work it can do in advising the Government with recommendations in instituting better mechanisms of land management. There are ways of curbing corruption which is rampant in all Government institutions than resorting to controversial recommendations. We are tired of bottomless and endless wars. We want peace.
As the case was with the National Policy Conference which I attended as a delegate of mailo land, the Government should work closely with stakeholders, including land owners and bibanja holders among others through their respective associations to organise a conference where discussions and recommendations may be made. This will contribute to a lasting solution to a current impasse on land in Uganda.
The writer is the founder of the Uganda Land Owners Association