Buganda tells land probe to give powers to district tribunals

Friday April 27 2018

Speaking out. Buganda Kingdom premier Charles

Speaking out. Buganda Kingdom premier Charles Peter Mayiga. FILE PHOTO 

By Ephraim Kasozi & Jalira Namyalo

Ebert Bukenya: Introduces the session. My Lord we start the with the delegation from Buganda led by Prime Minister Mayiga
Judge: We would like you to tell us how to address you
Charles Peter Mayiga: Just call me Owekitiibwa
EB: Please introduce yourself
Mayiga: My name is Charles Peter Mayiga. I am the Katikkiro (Prime Minister) of Buganda Kingdom. I have been in this office since 2013. I exercise duties on behalf of the Kabaka of Buganda. I am accompanied by Prince David Wassajja; the Kabaka’s young brother and ministers, a committee of clan heads and the executive of Masaza (counties) chiefs and other technical staff from different departments of the Kingdom.
EB: Normally I have witnesses whom I lead upon taking oath. But yours, is high level submission and not evidence on oath. Please clarify to us whether you will be the only one addressing the Commission or others will speak.
Mayiga: I will be the person to read the memorandum but should the commission want any clarification, I will direct one of the people to answer it according to their department
EB: Now I invite you to make presentation
Mayiga: I thank you for inviting us to make a presentation in regard to the mandate of Kingdom on land. I wish to thank you for the work you do relating to land matters…
Reads the memorandum ….
On December 8, 2016, the President appointed a Commission of Inquiry into the effectiveness of the law, policies and processes of land acquisition, administration, management and registration in Uganda headed by the Justice Catherine Bamugemereire.
The commission commenced public hearings across the country and has received several memoranda. On January 15 2018, it submitted an interim report to the president with several recommendations including the need to abolish the Uganda Land Commission (ULC), to create a new land authority and to reduce the current land tenures from four to perhaps three freehold, customary freehold and leasehold.
The Kingdom of Buganda which, through the Kabaka of Buganda is vested with Constitutional rights and interests in land wishes to submit its views and recommendations to the commission not only to ensure that its people’s native rights and interests in land are protected under the law. The Kingdom’s views derive from both a historical and contemporary context of land allocation, land tenure and manament in Buganda before and after Uganda’s independence.
The Kingdom’s concerns on land cover five major areas namely; The proposal to abolish the mailo land tenure and to fuse it with other tenures into a single tenure contrary to Article 237 of the Constitution and the public concern that the Commission was essentially established to target land tenure in Buganda and to ultimately abolish mailo land tenure in a manner similar to what previous regimes have attempted to do.

Compulsory acquisiton of land
The proposal to introduce a new regime for compulsory acquisition of land contrary to Article 26 and 237 of the Constitution in a manner that mostly disenfranchise land owners and occupants in Buganda which constitutes the most sought after land for commercial and public interests on account of the fact that it lies at the heart of the country’s transport system, public administration, business and commerce.
The delay in effecting the complete return of and or compensation for expropriated land to the Kingdom of Buganda contrary to Article 26 of the Constitution, the traditional Rulers Act (1993)and the agreement on the return of certain assets between the government and the Kabaka of Buganda in 2013.
The need to reform land laws – in particular the land Act of 1998 (as amended) – that perpetuate unfair laws between registered land owners, Housing and Urban Development, tenants and other occupants on land so as to improve land management and administration as well as introduce effective and quick dispute resolution mechanisms across the country.
The need to address factors that are responsible for or that contribute to rampant land grabbing and overall crisis in the land sector in Uganda. These factors include institutional weaknesses in entities relevant to the law and order sectors as well as the land sector in general. These institutions include the ministry of lands and district land boards, police, the directorate of public prosecutions (DPP) and the judiciary. Because of the institutional weaknesses, these bodies delay, neglect and or fail to investigate and prosecute land related crimes in a timely and judicious manner.
Sadly, the resolution of the land question in Uganda since independence and particularly in 1967, 1975. 1998 and 2007 has often been subjective and done in piecemeal or ad hoc manner often without due consultations with all the stakeholders. Each development right from 1900 has been heralded as a reform by its advocates yet still the land sector remains in a state of disorganisation. We sincerely hope that this commission will take the time to consider all the evidence before it objectively and judiciously and as a result of this Commission’s work, recommendations will be made to critically review and take necessary measures to address the malaise that affects land tenure in Uganda once and for all.
Proposals to fuse mailo and freehold land tenure into one
In its interim report to the president, the Commission recommended for the reduction of current tenures from four to three; freehold, customary and leasehold.

Proposal to abolish mailo land
This recommendation was greeted by a public outcry particularly from individuals and institutions such as the Kingdom of Buganda who hold mailo land titles. The outcry arose out of the fact that no known public demand had been made before the commission for the abolition of mailo tenure. Also because no persuasive or justifiable reasons were tendered by the commission to back up the recommendation.
Moreover, it was unclear what the recommendation meant to registered owners of mailo land titles. Were they to be cancelled? If so, would these not be contrary to Article 26 and 237 of Constitution? In response to these concerns, the Commission issued a press release where it denied recommending the abolition of ownership rights currently represented by mailo land tenure. In its clarification, the Commission stated that its recommendation was in fact efforts to be made to fuse overtime these parallel freehold type systems into a single tenure to introduce clarity and cohessions. To the Kingdom and indeed other registered owners of mailo land titles, the clarification created more confusion.
…Buganda is apprehensive about the proposal to abolish the mailo land tenure or to fuse it with other tenures into a single tenure. It believes that mailo land tenure is uniquely part of Buganda’s history and is now deeply engrained in its culture, customs and traditions. The mailo land tenure is unique in the way it recognises the interest of the registered proprietors and occupants of land. Indeed customary practices have developed that it defines the terms of ownership, usage, occupation and inheritance of land and the mailo land regime... It is difficult to imagine how these would be defined and understood in a fused tenure system.
The unique character of the mailo land tenure in Buganda may explain why, even after it was abolished by Gen Idi Amin in 1975, the Mailo land division in the ministry of lands remained and mailo land titles continued to be issued and held. In effect, Mailo land tenure was abolished in name and not in fact.
It is sometimes wrongly argued Mailo land tenure represents historical in justices of the land distribution under the 1900 agreement. On this basis, it is argued that the abolition of this tenure would somehow redress these historical injustices.
It is important to point out that as of today, the only entity that retains land as was allocated under the 1900 Agreement is the Institution of the Kabaka who still holds the 350sq miles that is occupied by a variety of people including a lot of non-Baganda. This being the case, it would be the institution of the Kabaka that would be most adversely affected by a proposal to either abolish mailo land tenure or somehow fuse it with other tenures. This reality explains the kingdom’s fears that the proposed removal of mailo land tenure is targeting the Kabaka.
It is also claimed that mailo land tenure is responsible for lack of proper planning and zoning of developments in peri-urban and urban centers. However, such claims cannot be justified. The problem of congestion, poor planning, slums, poor sanitation and haphazard developments can only be blamed on the lack of effective laws and poor implementation of planning laws and policies. Mailo land tenure does not prohibit or preclude urban authorities from formulating and implementing town plans within clearly demarcated development zones or set standards. In any case, it cannot be argued that poor planning and slummy conditions in other parts of Uganda are attributable to the mailo land tenure where it does not exist. It is doubtful that the fusion of land tenures will miraculously result in proper planning of urban areas in absence of effective laws and policies as well as effective and deliberate implementation mechanisms by urban and town authorities.
Regarding the problem of overlapping and sometimes conflicting interests on the same land mostly under mailo land tenure between registered land owners and occupants, the Kingdom agrees that there is a need to find a lasting solution. We believe that one of the main causes of rampant and wanton evictions of occupants of land is paralysis that arises out of the duplicity of ownership by registered proprietors and tenants, bonafide or lawful occupants on land. We consider that the solution to this problem lies not in abolition of mailo land tenure or fusion of tenures but in the layering of ownership of land as well as the provision of leasehold certificates of titles to the landless groups occupying or using registered land. The protections under the current law for bonafide occupants, bibanja holders or lawful occupants of land such as payment for nominal ground rent and prohibitions of evictions without court orders have not provided sufficient security of tenure for these categories.
... We invite government to utilise the land fund to help unregistered occupants on land to acquire leasehold land titles on willing seller-willing buyer basis.
We consider that if well managed and funded, the idea of land fund under Section 41 of the Land Act would solve the problem rather quickly. We believe this is where government should focus its energies provided always that the land fund is used in a transparent and a non-discriminative way against one group in favour of another...
More importantly to Buganda, the fact that much of Buganda of Buganda’s land was expropriated and managed without accountability by the government from 1967 and land has not been fully returned to the Kingdom and is managed by government agencies; much of this land has been converted from leasehold or mailo land tenure to freehold by ULC and district land boards render the proposal to fuse land tenures even more suspect and tenuous in the eyes of Buganda Kingdom. Why should violent expropriation of the Buganda Kingdom land by government be perpetuated and defended when all other victims of expropriation had their property returned to them or were duly compensated?
It is for these reasons that Buganda is strongly opposed to the idea of abolition of mailo land tenure or fusion of tenure system as suggested by the Commission. The Commission needs to dispel public fears that its work is targeting land tenure in Buganda.

Proposals for new regime on compulsory acquisition of land
Buganda and other interested parties are not convinced about the need to change the law to allow for compulsory acquisition of land without prompt payment of fair and adequate compensation prior to the taking of possession or acquisition of the said land contrary to Article 26 and 237 of the Constitution. The spirit of this legislation is that a person should not be dispossessed of their land unless they have been fairly and adequately compensated. Therefore any policy, law or practice that flouts this provision is ultra vires the Constitution and must not be allowed to stand. The Kingdom considers that government proposals on compulsory acquisition of land contradicts the spirit and the law enshrined in Article 26 and 237 of the Constitution. They (proposals) only seek to reverse the Supreme Court decision in the case of Irumba Vs UNRA where it was held that compensation must be paid before land is gazatted for acquisition by the government.
The Kingdom believes that the current law is sufficient to address compulsory acquisition. Instead of amending the law, it should address issues of assessment, corruption, cases of over payment whereby some people are compensated and others not. Instead of changing the law, the government should set up a mechanism to curb speculators who buy land in anticipation of projects and hike prices of the land earmarked for public projects. We also believe that the idea to leave compensations to courts is problematic because courts in Uganda are generally slow, sometimes are corrupt and are costly.
To make matters worse, government has a bad record and has been poor and slow at compensation of some verified claims. There are many cases in point including delays in payment even where the Chief Government Valuer has made assessment. These include compensation for Plot 52 Kampala Road and Muteesa House in London to Buganda Kingdom and compensation for Kibaale-Hoima refinery project where 100 families were affected.
We believe that the following problems are responsible for the crisis in the land sector and unless they are addressed, the crisis will persist.
Corruption in government institutions with responsibility over land, a compromised, slow and sometimes unfair judicial process in the resolution of land disputes, increased pressure on land resulting from an increased population and demand for land.
Undue politicisation and creation of multiple layers of authority within the government structures that often interfere and cause confusion in land administration. Land matters are concurrently handled by officials in the president’s office, the police, Resident District Commissioners, ULC, District land boards, District chairpersons, ministry of lands and the courts. There is no doubt that the multiplicity of centers handle land matters and disputes has contributed greatly to the crisis within Uganda’s land sector.
Lack of a comprehensive and consultative process aimed at land reform. Land laws are often passed in a piecemeal or fashion and without due consultations of all stakeholders. The Land Act and all amendments thereof are a case in point. Because of this, there is apathy and resistance to comply with laws that are regarded as unfair and discriminatory.