We need reform of mailo land

Recently I attended a cultural function at which a leading Kampala Advocate was installed as the eleventh Masembe in Buganda’s ensenene (grasshopper) clan.

The new Masembe, who took over from his late father Prof Bwogi Kanyerezi, will be responsible for the clan’s 448 acres of land at Maya, which was given to the first Masembe as trustee for the clan by Kabaka Kimera some 700 years ago.

As I listened to the emotional speeches which exuded pride in the clan’s heritage, I wondered how this land will be affected by the proposed scrapping of mailo land.

Mailo land, like all customary land systems in the country represents the rich history and heritage of our people. The history of mailo land starts with the Land Regulations of 1897.
Under these Regulations, the Commissioner (Governor) was given power to grant a certificate to any person authorising him to hold and occupy a portion of land “which at the commencement of these Regulations, is not cultivated or regularly used by any native or tribe…….”

Traditionally, land in Buganda was occupied or used by chiefs or private persons according to four types of usufruct rights emanating either from the Kabaka or clan heads in whom primary interests were vested on behalf of the people. Clause 15 of the Buganda Agreement of 1900, which must be read in conjunction with the Land Regulations, provided “One thousand chiefs and private landowners will receive the estates of which they are already in possession……”

Clause 15 further provided: “As regards the allotment of 8000 square miles to private individuals, this will be left to the decision by the Lukiko with an appeal to the Kabaka.”

The allotments by the Lukiko, which were based on titling existing customary rights, should be distinguished from donations made by the Commissioner to senior chiefs under the power given him by the Land Regulations of 1897. By a note dictated by the Commissioner to his secretary J.J.
Cunningham on October 13, 1900, the Commissioner gave away a total of 1200 square miles to 28 senior chiefs without taking into consideration existing clan lands and private persons customary rights.

Earlier on February 13, 1900, the same Commissioner gave out a total of 45 square miles to three senior officials “in accordance with a verbal agreement arrived at today between myself and the Katikiro, Kangawo and Mugwanya….”

Unlike the case of allotments under the Agreement which were based on existing rights, the survey of land which was donated to chiefs, enchroached on other peoples land and caused a dispute which was referred to the colonial secretary.

The decision of the colonial secretary with regard to the vexed question regarding Bataka land was delivered by the Governor to a special session of the Lukiko held on October 15 1926.

The secretary was of the view that the question whether freehold estates should be vested in one individual or another was of less importance than that of safeguarding interests of native tenants.

A condition precedent for the appointment of the commission was that both parties would be bound by the decision reached by the colonial secretary.
What we need is reform of mailo land.

This reform can take four steps. First, a law equivalent to Busuulu and Envujjo Law should be enacted. Second, all freehold title deeds fraudulently issued over mailo land should be cancelled. Third, a census of mailo land ownership should be undertaken. Forth, sources of frauds at the land office should be investigated.

Lastly, a distinction should be made between Agreement land and donation land and all land not surveyed.

Mr Mulira is a lawyer,
[email protected]