One of the first tests of whether Uganda could survive as a nation came in 1964; two years after independence. It was in the form of a referendum to determine the fate of two counties. The fact that a referendum was required means there was no consensus. Land has since been a major polarising issue in Uganda and a source of conflict, actual and potential.
Conflicts over land threaten to become more intense rather than abetting. This is due to rapid population growth, the trend of rural-urban migration, which exposes land to illicit sales and grabbing, and the effects of large-scale displacements as a result of war.
There is the formal dealings based on laws handed down from the British colonial government when Uganda became independent. Then there is the parallel but by no means less effective system based on local customs that vary from one culture to another.
Any intervention should create harmony between the parallel and sometimes conflicting systems. This can be achieved through law reform and a public education campaign.
Ugandan law recognizes three tenure systems. The Mailo tenure which is basically freehold applicable to land in Buganda, the Leasehold tenure, freehold tenure and customary tenure. Despite this legal recognition, customary tenure still ranks inferior in most people’s perception. Banks are unwilling to take customarily held land as security for loans.
There is legal provision for customary land owners to get certificates of customary ownership of land. The process is simple but so far communities have resisted any invitation to acquire these certificates.
On the other hand there have been many cases of direct conversion of customary land holdings into freehold titles. This step has mainly been taken by elites who know the processes and have the financial resources to have the land surveyed and to pursue the process of title acquisition.
Alongside all these private claims is communal land. These tracts of land are mainly used as grazing land, woodlands or hunting grounds. How these communal land holdings are managed vary from place to place but the common denominator is that no one can alienate any part of that land without the consent of the clans acting through recognized clan heads.
In a society scarred by armed conflict, in particular where the majority of the population has been displaced, there is severe threat to communal land. Elites tend to take advantage of the weak clan leadership structures to grab large tracts of land. Government tends to gazette communal lands either as game parks or forest reserves, as is the case in Apaa.
It also attempts to dispossess clans of communal land purportedly in the name of so called investors. A case in point is the long standing dispute over the attempt by the government to allocate over 60 square miles of land to the Madhvani Group for sugar cane growing.
This matter went before the courts of law. The clans are seeking a court declaration that the land in question is communal land over which the government has no authority. But even before the court gave its verdict, government had already given “compensation” to the occupants.
All these challenges exist in a context where the legislature has no real power to limit the power of the executive, where there is impunity by government officials who face no sanctions for misconduct, where officials demand bribes to process land documents and where government officials exert improper influence and where there is no guarantee of due process in case one is aggrieved by decisions of government officials.
Even more severe is the inadequate access to justice. Legal counsel is inaccessible to most people, civil justice seems to favour the rich and powerful, there is an abundance of improper influence in the arena of civil justice, there is a lot of delays in adjudication of cases both civil and criminal, decisions remain unenforced and alternative dispute resolution is inaccessible and ineffective where it can be accessed.