Colonialism didn’t disturb the customary systems they found

Tuesday March 20 2018

Colonialism didn’t disturb customary systems found

Mr Peter Mulira is a lawyer. COURTESY PHOTO 

By Peter Mulira

As we try to find a permanent solution to our land problems, it is important that we pay attention to our history, especially as to how our societies were formed long before the intrusion of colonialism.
Our history is characterised by our ancestors’ migration across the length and breadth of the African continent. As various groups of people moved through central Africa to the southern portion of the continent and others moved to the eastern portion, new societies were constantly being formed. Some groups split from the main bodies while others remained in place. As people formed these new societies, they chose their political forms as well.

By sharing common purposes and the political will to achieve them, African peoples made choices as to the form of political system to adopt. It is the diversity of political forms that we should regard as one of the most variables in African history. Indeed the most persistent theme in African history is the very diversity of its peoples which pervades all their social structures.

In most societies, the jural community was a clan that consisted of two or more lineages. A lineage has been defined as “the most extensive grouping of people of both sexes all of whom are related by common patrilineal descent or a descent traced from one known or accepted founding ancestor through father-related antecedents.”

Such jural community organisation can be illustrated in the formation of the Kadimo chieftainship, which has been described by one writer in these terms “The establishment of the Kadimo chiefdom was made possible by the advent of the Joka-Owiny group of Luo into Nyanza. This group broke from the Padhola and their early history in Uganda seems to have been very much influenced by the Iteso. Their leader was Owiny Para, who is claimed to have been the brother of Adhola, the founder of the Padhola.”

Apart from clanship as a basis of social organisation, a system of kingship developed as a result of diffusion of ideas from the Nile Valley where the Kush Empire had reigned supreme.

According to one expert, kingship evolved wherever an incoming minority looking for new land extended their rule over settled people, who lived within different lineage frameworks. In some cases such as in Buganda, the existing clans elected one of their number to be their leader or king. Kings were repositories of rituals and this accounted for their authority and veneration by their people. These political formations also accounted for the type of land systems which existed in a particular community. Land belonged to the community through the clan and/or the community head, who gave out usufruct rights to members of his group. The common thread in all these customary land rights was that there was no ownership in fee simple or perpetuity in the Western sense.

The onset of colonialism did not disturb the customary systems that were found in existence, but instead superimposed on them a legal regime through which legal rights in the Western sense could be obtained through grant of certificates by the Commissioner/Governor. The Land Regulations of 1897, which came into force on June 10, 1897 provided that “The Commissioner may, if he thinks fit, grant to any person a certificate authorising him to hold and occupy the portion of land described in the grant for a term of years…”

Such certificates of title could be obtained outside Buganda under the Crown Lands Act of 1903 and Rules made under it and in the case of Buganda Kingdom where restriction to ownership of land by non-Africans applied under the Land Law of 1908.

Mr Mulira is a lawyer. [email protected]