Land Act of 1997 reinstated the mailo land system

Friday October 12 2018

Colonialism didn’t disturb customary systems found

Mr Peter Mulira is a lawyer. COURTESY PHOTO 

By Peter Mulira

Following the enactment of the Land(Amendment) Act of 2010, the system of landholding known as a kibanja has taken centre stage in the land disputes.
This system was introduced in 1928 under the Busuulu and Envujjo Law, which sought to protect occupants of land against the excesses of rapacious mailo land owners.
Prior to the land settlement of 1900, the land system in Buganda was based on the Kabaka and clan heads in respect of clan land.
Under this system, anybody could own land through grants by the Kabaka or his chiefs as well as clan heads. The religious war in 1888 forced the Kabaka to go to exile in Sukuma in present day Tanzania.
In the absence of the Kabaka, the victorious Christian leaders divided the kingdom into catholic and Protestants parts which were ruled by chiefs appointed by the respective leaders.
Accordingly, the land settlement in 1900 involved chiefs appointed by religious leaders and not the Kabaka or clan heads. This left out interests emanating from clan heads and the extinction of the system flowing from the Kabaka and his chiefs meant that control of land fell in the hands of mailo land owners.
The clan heads led by one James Miti mounted a campaign against the new system, which had discriminated clans and led to exploitation by mailo land owners in equal measure.
The clan heads were joined by two young men, Daudi Basudde, who in 1928 became the first African millionaire in Pounds and Serwano Kulubya, who became the first Mayor of Kampala and Deputy Speaker of Parliament after independence.
After visiting London to seek legal advice, Basudde on his return helped the clan heads to file a suit in the High Court and following the outcome of this case, the colonial secretary in London made certain decisions which led to the enactment of the Busuulu and Envujjo Law by the Buganda Lukiko.
The law sought to balance the interests of the mailo owners with that of their occupants. For example, it was provided that everybody had a right to live on the land, but nobody had a right to come on one’s land without their consent. Such consent could not be refused except in the case of a criminal or a witch.
Likewise, the occupant was under an obligation to respect his landlord, who could only evict him for abandoning his kibanja or for failure to pay rent, but only with a court order.
The kibanja itself was of two types namely, a domestic kibanja and an economic kibanja. A domestic kibanja comprised one acre and could be inherited by one’s heir but interest in the economic kibanja was limited to crops grown on an extra acre.
In 1965, the Buganda Economic Commission carried out a census of bibanja in Buganda, which revealed that there were only 220,000 bibanja holders, the majority of them coming from a neighbouring country.
The Busuulu and Envujjo Law ceased to apply in 1975 on the abolition of mailo land, which meant that the system of kibanja was also abolished.
The Land Act of 1997 reinstated the mailo land system and defines a lawful tenant to include, among others, a person who came on the land under the Busuulu and Envujjo Law of 1928.
Since there were only 220,000 bibanja holders in 1965 and no new bibanja were created after 1975, it follows that the only time relevant for considering whether or not one is a kibanja holder is 1965. Secondly, a defunct law cannot confer rights. Accordingly, there are no bibanja holders in Buganda today.

Mr Mulira is a lawyer. [email protected]

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