The Commission of Inquiry into land Matters handed in its report to the President last week. The Commission’s terms of reference included investigation into the law and processes by which land is administered and registered in Uganda, the role of traditional, cultural and religious institutions, which own large tracts of land, assessing the effectiveness of land acquisition and policy by government, and the effectiveness of dispute resolution mechanism, among others.
According to newspaper accounts, the report recommends that the people who own customary land should get what the Commission termed customary freehold titles and proposes taxation of idle land among others.
Regrettably, many people will find the report of little assistance in resolving land disputes, which was the main reason for which the Commission was set up. The immediate cause of land disputes is the issuance of double title deeds over the same piece of land, frauds involving MRV titles, theft of former freeholds, which belonged to non-Africans.
Other causes include the merger of the office of Registrar of Titles with that of Commissioner of Lands, insubordination to the Commissioner of Survey and his office and a campaign to demonise mailo land and the impunity of registrars from legal liability as well as the growing influence of land agents.
Two recommendations; namely customary freehold and taxation of idle land particularly call for comment.
This is because what the report recommends contradicts what is in the National Plan, which was adopted with a lot of fanfare by delegates from districts at the Conference Centre in 2016.
According to newspaper reports, the Commission recommends the introduction of customary freehold, which is in itself a contradiction. If the intention is to make customary tenure to be at par with other tenures, you do not achieve this by tagging to another tenure for its efficacy.
Second, the incidents of customary tenure or law are distinct from those of freehold.
Black’s Law Dictionary defines customary law in these terms: “In contrast with statute, customary law may be said to exemplify implicit law. A custom is not declared or enacted, but grows or develops through time although we may be able to describe in general the class of persons among whom the custom has come to prevail as a standard of conduct, it has no define author…”
The issue of recording or registering customary law has been the subject of academic debate. In the 1960s, Prof Allott of the University of London, headed a project named “Restatement of African Law” to resemble Coke’s “Restatement of English Law” in an earlier age.
The project was discontinued after it was established that once you codify customary law, it ceases to develop and grow. Freehold is an English customary law with only one incident, namely the fee simple. To kill our customs in preference for foreign practices is not a welcome policy.
All the four land tenures; namely freehold, mailo, customary and leasehold existed in harmony during the colonial period. Whoever wanted to have a title deed on customary land could do so, but only after satisfying the customary rules and procedures which governed it. We should revert to this system.
The Commission recommends taxation of idle land in contradiction of the recommendation in the National Land Policy in paragraph 3.5, which says: “Whereas land taxation is desirable for attaining optimality in the use of both rural and urban land, its application cannot be advanced until Uganda is a middle-income country.”
The solution to our land problems can only lie in a return to pre-1975 land regime. In this way customary rules will fill in the gaps existing in or land administration and processes we are seeing today.
Mr Mulira is a lawyer.