If you are on land that doesnâ€™t have a title, then you are on this land â€” Peter Mayiga, Bugandaâ€™s spokesman
By Gerald Businge
LAST week, Buganda kingdom submitted its five proposals to the Constitutional Review Commission (CRC). The third was that the ownership and management of â€œthe 9,000 sq. miles,â€ should revert to the Kingdom of Buganda.
Under the 1900 Buganda agreement (Article 15) 9,000 square miles of land were entrusted to the colonial (crown) government for protection and development. This land was returned to the Buganda Kingdom at Independence in the 1962 constitution, but was declared public land in the 1967 constitution by then Prime Minister Milton Obote.
Charles Peter Mayiga, Buganda kingdomâ€™s spokesperson and minister for youth and information says the 9,000 sq. miles which the Buganda kingdom wants are spread across Buganda: â€œThis land was stolen by Obote in 1966 and he nationalised it. We are saying return the land to the rightful owner who will then dispense it accordingly,â€ Mayiga says.
The 9,000sq. miles were demarcated as â€œwaste and uncultivated land to be vested in her majestyâ€™s governmentâ€ from the estimated 19,600 square miles of Buganda. It was the remainder after specifying land given to chiefs, royals and administrative units.
But where exactly are the 9000sq. miles? Does it include the land you live on? â€œAll land in Buganda was surveyed. Every piece of land for which a title (land title) was not issued was part of crown land and therefore is part of the 9000sq.miles we want. If you are on land that doesnâ€™t have a title, then you are on this land,â€ Mayiga says.
In 1967 constitution, this land reverted to the Uganda Land Commission, and a small part to KCC and later district land boards (under the Land Act, 1998).
In their proposals to the CRC, the Buganda kingdom argues that when the Land Act automatically creates tenancies and takes away the land ownerâ€™s right to negotiate fair tenancy terms; when it restricts the land ownerâ€™s right to use the land; when it restricts the rights of a title holder to transfer, pledge or mortgage land, it is taking away the essence of ownership, and is interfering with the property rights of the land owners.
â€œThis unconstitutional 1998 Land Act deprived land owners who had invested in land of their property without complying with the provisions of Article 26(2) of the 1995 Constitution.â€
Article 26(2) says;
â€œNo person shall be compulsorily deprived of property or any interest or right over property of any description except where the following conditions are satisfied:
a. the taking of possession or acquisition is necessary for public use or in the interest of defense, public safety, public order, public morality or public health: and
b. the compulsory taking of possession or acquisition of property is made under a law which makes provision for-
i. prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property; and
ii. a right of access to a court of law by any person who has an interest or right of property.â€
â€œThis issue is very important to the people of Buganda, because it directly affects the land returned to the Kabaka under the â€œEbyaffeâ€ statute in 1993. Although on paper, the Kabaka holds 350 square miles of land which were returned to him, in actual fact, he cannot use this land, nor does he benefit from it,â€ says the document.
The document objects to the extremely unfair rent of sh1,000 irrespective of the size or location or economic activity on the land. It states that throughout history, the Busuulu and Envujjo laws found an appropriate compromise between landowners and tenants. These laws gave sufficient protection to tenants and squatters, while at the same time giving protection to the landlord. The current Land Act upset these relationships and is not workable.
The document states: â€œIt is possible to achieve the public interest objectives of the Land Act in other manners that do not violate fundamental freedoms and property rights guaranteed under the Constitution. The Constitution needs to be revisited on the questions of â€˜bonafideâ€™ and â€˜lawful occupantsâ€™ having regard to the rights of landholders. If the Constitution clarifies the issue, then the Land Act can be adjusted accordingly. The issue of the Land Act is raised here because it emanates from the above constitutional provisions.â€
Perhaps nowhere in Uganda is the land question as sensitive as in Buganda. Mailo land was introduced by the 1900 Buganda agreement to the disenchantment of many people. Overnight, by just a stroke of a pen, some individuals were granted big chunks of land (Mailo), making the original owners become squatters on their own land.
The Buganda kingdom argues that just like expropriated properties of Asians and traditional leaders have been returned and it is the well established Government policy that such properties should be returned, this land should be returned to the Kingdom.
But the Buganda Kingdom described in Article 9 of the 1900 agreement consists administrative counties of Kyaggwe, Bugerere, Bulemezi, Buruli, Bugangaizi, Buyaga, Buwekula, Singo, Busujju, Gomba (Butuzi), Butambala (Bweya), Kyadondo, Busiro, Mawokota, Buvuma, Sese, Buddu, Koko, Mawogola and Kabula. Of the six counties that had just been annexed from conquered Bunyoro-Kitara kingdom, Buyaga and Bugangaizi voted to return to Bunyoro in the 1964 referendum.
Augustus Nuwagaba, a Senior Lecturer in Makerere Universityâ€™s Faculty of Social Sciences and a land policy specialist says its not easy to grant that request of granting Buganda kingdom the 9000sq. miles without amending the constitution.
â€œWhen that land was named and exchanged even in the 1960s, there were only two land tenure systems, freehold and Mailo, plus this 9,000 sq. miles vested in the government. But the 1995 Constitution and the Land Act, 1998 provide for four tenure systems, including customary and leasehold. This means people on this land have defined rights, and giving the land to another party requires an amendment,â€ Nuwagaba says.
Mayiga says the sitting tenants have nothing to fear: â€œReturning it to Buganda does not mean affecting any existing or future rights of lawful owners or occupants, any more than the return of Kabakaâ€™s land in 1993 affected any legitimate owners or occupants,â€ the kingdom said in the memorandum of Baganda submitted to the CRC.
But then why is the kingdom demanding for that land now? â€œThis land in question belongs to Buganda, and we are saying before you give it to anybody, first give it back to the original owner, who Iâ€™m sure will give it to the districts where it is. This is a constitutional matter and one of morals, a question of proprietorship,â€ Mayiga argues.
But analysts say Bugandaâ€™s fourth proposals to amend the land law does not rhyme with their claim of maintaining the rights of bonafide occupants after the 9000sq. miles are given to them, since they are demanding for the reduction of rights given to tenants.
Apart from the fear of distablising the respective district land boards who manage and allocate this land, Nuwagaba argues that it is impossible since some of the land is outside Buganda Kingdom as recognised in the 1995 constitution.
â€œBuganda at the time of signing the 1900 agreement included the former lost counties of Buyaga and Bugangaizi which today make up Kibaale district. So if some of this land is outside Buganda, how do you return it to the kingdom? This land was just taken away from local people and didnâ€™t belong to the Kabaka in the first place,â€ he says.
The Mengo government however, insists that all the 9,000sq. miles are in Buganda, save for Kampala, which is not recognised under Buganda.
â€œThe land in the lost counties was given to individuals and isnâ€™t part of the 9,000sq. miles,â€ Mayiga explains.
â€œActually, over 3,000sq. miles of this land they are claiming are in Bunyoro. Go and look at the 1900 agreement. So they should be asking for 6000sq. miles,â€ says Henry Ford Mirima, Bunyoro kingdomâ€™s Press Officer. The Sâ€™abaruli, head of the Baruli tribe in Nakasongola district claims the Buganda kingdom took their land.
Some people have expressed fear and skepticism at this move by Buganda kingdom, saying it may be a ploy to throw out non-Baganda: â€œThey have been demanding for the 9,000sq. miles, but they never tell us where that land is and how it affects people living on that land, especially us non-Baganda,â€ says Ben Tushabe of Kasubi.
Philip Oloya Oruni in his book What is good for Uganda which analyses the provisions and implications of the 1900 Buganda agreement, predicted that provisions on land which â€œmaterially violated and robbed the basic sovereign heritage of the community-land, are a time bomb waiting to explode.â€
The Buganda kingdom says such fears are misplaced since no one has ever been evicted from the land given back to the Kingdom in 1993 on account of ethnic origins. â€œOn the contrary, 40% of the leases granted in Kampala area by the Buganda Land Board (which administers it on behalf of the Kabaka) are to non-Baganda,â€ reads the statement.
The Buganda kingdom is also uncomfortable with The Land Act, 1998 which provides for â€œbonafide occupantsâ€ and â€œlawful occupantsâ€ of land, thus giving former squatters security of occupancy. While the Constitution and the Land Act vests land ownership in private citizens, the Buganda Kingdom owns over 52% of non-public land.
â€œThe Land Act, 1998 needs to be repealed and its aims and objectives should be revisited to ensure that it adheres to well-established principles of Constitutional Law and does not violate fundamental rights and freedoms. In enforcing the rights of bonafide and lawful occupants as set out in the Constitution, it tramples on the constitutional fundamental rights and freedoms of landowners,â€ they say in the statement. Ends