Monday March 5 2018

The land question was settled eighty years ago

  Peter Mulira

Peter Mulira  

By Peter Mulira

The debate about land has degenerated into false claims against Mailo land and grandstanding instead of engaging in informed conversations based on the wealth of existing literature on the subject.

In Buganda, the Busuulu and Envujjo Law of 1928 settled the land issue by balancing the rights of Mailo owners with those of private individuals. Section 8 provided “Nothing in this law shall give any person the right to reside upon the land of a Mailo owner without first obtaining his consent.”

Section 22 protected a kibanja holder by providing that “No mukopi may be evicted by the Mailo owner from his kibanja save for public purposes or for other sufficient cause and until a court having jurisdiction shall have tried the case and made an order of eviction.”

Section 6 of the same law gave the government the right of compulsory acquisition of Mailo land while section 2 of the Law to Empower the Kabaka to Acquire Land, the Kabaka was empowered “to request the owner of Mailo land to sell, exchange, or lease it to the Kabaka as trustee…” to be used for public purpose.

One of the falsehoods, which has been purveyed against Mailo land is that the British took land from peasants and gave it to chiefs who collaborated with them. This claim is rebutted by the wording of Clause 15 of the Buganda Agreement, which confirmed people in ownership of their estates.

The section reads “One thousand chiefs and private landowners will receive the estates of which they are already in possession and which are computed at an average of eight square miles per individual making a total of 8,000 square miles.”

Before colonialism, Buganda had a well articulated land holding system in which in usufruct rights to estates, which were mostly attached to offices such as chieftainships. Ultimately, ownership or the right of disposal was vested in the Kabaka, who appointed chiefs at all levels.
Private individuals could get usufruct rights from the chiefs, which were known as obwesengeze. Similarly, such rights could arise between individuals and were known as obusenze.

The Bukumbi Agreement of October 1889 between the Catholics and Protestants ended religious antagonism between the two faiths and in order to maintain a permanent balance between the two parties, the chieftainships estimated to be about 600, were shared out between the two parties in such a way that the holder of a post was to be accountable to the superior of the opposite party.

The prerogative of appointment was vested in the leaders of each religious party, not in the Kabaka, who had fled into exile in what is today northern Tanzania.

As such, the chiefs who were confirmed in their estates, were not Kabaka’s chiefs and reference to private landowners in the agreement is evidence of existence of an individualised customary land system before colonialism.

The chiefs who were created under the 1900 Agreement did not receive land in their personal capacity. Section 5 of the Land Law of 1908 allowed to hold official land for the duration of his tenure.

The confusion in our land management is due to the following factors:
• The Constitution, which vests land in the citizens. The term “citizen” is not a legal person capable of owning land. The radical title from which all interest flow is not located anywhere.
• The Land Act, which creates two concurrent interests on the same Mailo title.
• Disregard of our traditional systems, which are represented by Busuulu and Envujjo Law in the case of Buganda.
• The issue of the cattle corridor.
• Government involvement.
• Influx of people

Mr Mulira is a lawyer.