March 10 will be 118 years since the 1900 Buganda Agreement was signed between three Buganda regents and Sir Harry Johnston, the special commissioner of British colonial power. This is the document that created Mailo land. The whole negotiation took only three months. His instructions were to ensure that land becomes a means of production in the real sense of the word in order that the colony meets its costs of maintenance.
He sent the final agreement to the Foreign Office for comments. A London committee studied the agreement and sent a dispatch which, among other things, stated that “the introduction of the law of England in regard to land, which appears from the wording of the agreement to be the intention of its framers, may create a very complicated system”. These words have proved prophetic.
Now the Bamugemereire commission is proposing to fuse all freeholds. That means Mailo land as we know it will be no more. But before we go far, what is Mailo land?
In attempting an answer let me quote HW West, a colonial officer, who in 1964 wrote: “It is certainly a complex of communal rights, as yet found today in some other tribal areas; although a few ancient communal rights still survive. It is not even a system based on clan rights, also fairly common elsewhere;... Nor, despite the recognition and full acceptance of individual title to land, is it a truly commercial tenure in which custom has yielded to contract as a basis for economic relations.”
“Instead it is somewhere in between. It is characterised mainly by the quasi-freehold titles introduced, almost revolutionarily, after 1900, but it has also been deeply affected by a later partial reversion to traditions; a compromise with custom. It is the product of a well-meaning, but hasty, attempt to introduce modern European concepts of land holding to a people amongst whom such ideas had not at that time developed spontaneously.”
When Mailo land was introduced it became clear that it would require reforms to define the rights and obligations of the title holders. In addition, there was a codification of Buganda customary law that imposed on the title holders an obligation to respect statutory and inheritable tenancies.
Hence the Busuulu and Envujjo laws which basically obliged the tenants to pay rent in cash and kind. The protectorate legislation then came in to make provision for registration of the various interests on the Mailo land.
To look at Mailo land only in terms of the owners of the freehold is narrow minded. The Mailo land system covers all aspects of tenure - those of the Mailo proprietor and also of the tenancies. The variety of interests and rights can sometimes get confusing but all the defects in drawing the boundaries of the rights and interests can be cured administratively and by legislation. The problem is that now Mailo land has been commoditised and is in the hands of those who don’t want to see the occupants.
Land tenure is not an end in itself. It is a means to an end. The end that should ever be kept in sight is productive land use. The commission will have failed if it does not take into account certain harmful trends especially land-grabs, encroachment on forests and wildlife reserves and abuse of power by officials in charge of land administration. Expectations are high that the commission’s efforts will result in the moderation of the undesirable effects of the individualisation of land, guarantee security of tenure to occupants and regulate rent.
Targeting Mailo land for annihilation is not a solution. It reminds me of the man who was found searching for something under a street lamp. When asked what he was looking for, he answered that he had lost his ring. When asked further where he had lost his ring he pointed to a dark place down the street insisting that he had decided to look for it under the street lamp where he could see!