Kibanja holders won’t compensate mailo land owners – minister

Police intervene in a land conflict.  PHOTO/ FILE

What you need to know:

Interview. President Museveni has recently intensified attacks on the Mailo land tenure system, mainly practiced in Buganda, calling it “evil” and has declared how intends to end rampant land evictions in the country. Mr Museveni has appointed Sam Mayanja, a senior partner at Kampala Associated Advocates (KAA), one of the biggest law firms in the country, as his junior minister for Lands, an appointment that has left the Mengo establishment nervous because the veteran lawyer is one of its biggest critics. After he took oath last week, Derrick Kiyonga interviewed Mayanja on the delicate land tenure system in Buganda.

You have been in private legal practice for many years. How do you feel about this appointment?
It was such a big surprise for me. Of course, I have been writing a lot about land issues, but for the President to say ‘Dr Mayanja hold this docket for me’ was overwhelming. This is a big challenge because I have to live up to the expectations of the appointing authority. I have been researching, writing and I have helped those being oppressed by the current land tenure system.

The President has been saying that land evictions should come to an end. How are you going to achieve that?

Land evictions have not been an event, but started more than 100 years ago before my father and your father were born, even before President Museveni’s grandfather was born. Land evictions descended on this country with the 1900 Buganda Agreement.

Immediately after that agreement was signed and individuals were assigned unsurveyed chunks of land, evictions started. When one reads the history as written by late Bishop Tucker [Anglican bishop], the whole country was on the move. People were moving from west to east. Every individual who was allocated land would evict people he or she found there. 
The evicted people would move to another piece of land perhaps owned by a chief who would welcome them and treat them better. 

Bishop Tucker says our country has been on the move and that misery has not ended to date. That’s why there is a challenge and in between, there were attempts to handle that misery because it was too much and caused so much instability that after Uganda had been divided into four provinces – Northern, Eastern, Western, and Central – the commissioners of the four provinces – each province met and agreed that the Mailo land tenure has caused so much misery in Buganda so it shouldn’t be extended to other provinces.

So before the legal instrument putting the Mailo land tenure in place was signed 1908, the Bataka [chiefs], who had been completely ignored, submitted a document. It’s very interesting to note that that document was well written and the missionaries helped them write, complaining how they had been left out of the land bonanza. It’s interesting because it’s the same missionaries that had helped [Buganda Katikkiro] Sir Apollo Kaggwa to negotiate the 1900 Buganda Agreement.
They are the same ones who helped the Bataka write that very comprehensive document to the colonialists, stating cogent reasons how they had been left out and why that agreement [1900] shouldn’t be operationalised.

In 1908, the colonialists ignored it and put in place the first legal instrument in this country, the 1908 Land Law. If you read that law, it explains extensively what Official Mailo is and in a few sentences what Mailo is. We say private Mailo but the law just said mailo. That’s why you see in 1967, there’s one Mailo and even the current Act and Constitution talk of only Mailo. Official Mailo was reserved for Buganda, who hadn’t shared in the 1900 bonanza and a Muganda would go to a Mutongole [village chief) who would go to the Ssaza Chief who would allocate him land without any quarrel.
The only condition was just like the British wanted was the Busuulu and Envujjo law [ground rent]. The Kibanja owner had to pay the Busuulu and Envujjo. The Mailo owner needed the money so he would ensure that Kibanja person works on the land such that he pays him his ground rent. On Official Mailo, that chief would ensure that the Kibanja holder is productive because the Busuulu was some kind of salary to the chief.

So the government would gain by getting the taxes as the Asians had most of the business. So the Kibanja person was squeezed the most because if he didn’t work on the Kibanja, if’s official Mailo, the Ssaza chief would be on his neck, if ‘s Private Mailo, the Mailo owner would be on his neck and then if the two don’t then the government would come in asking them to pay taxes. So either side, the Bibanja holders were oppressed. In the 1928 law, there was a clause that ekibanja holder wouldn’t sell without the consent of the Mailo owner. 

Why? Because he has to ensure that he remains there and tills the land and oversee that actually the Kibanja holder is doing that. If ekibanja holder sells to a person who is lazy, it would affect the government revenue and it will affect also the Mailo owner. So they included that clause. Unfortunately, that clause is still present in the current Land Act.  That clause is a terrible one. It’s an oppressive clause.

What should be the solution to bona fide occupants who keep on getting evicted from land?

Number one, there is already a law protecting them but that law is being flouted by individuals who have the mother title from which other people get certificates. It’s painful, but these occupants don’t have a full title. The Mailo owners got free land they never paid for. The ekibanja holder didn’t pay for it but has always had obligation to pay from generation one, 1900, to generation two, 1942, if we assume the life expectancy was 40 years. So we are now in the third generation – the first kibanja holder, the grandchildren, the great-grandchildren are all suffering. It’s like the Bible notion that the third and fourth generations will pay a price for sins committed by their ancestors. That must end at least with our generation. This notion that ekibanja holder is nothing should end. A person comes saying, “I have bought here and I have a mother title you people leave my land, you guys have mere certificates.” There should be security of tenure for everybody.

Everybody should have a title. I’m one of those people who are saying there is no need to compensate the Mailo land [owners]. They got it free of charge and they have been earning from it. They have been going to the bank to get loans with it. The entire landmass of the Mailo is occupied by Bibanja holders. They are the ones who are sustaining the economy. These huge plantations of matooke, coffee, cotton, name it, it’s for Bibanja holders’. But the man [landlord] sits wherever he is and gets Busuulu, get envujjo. The same man comes back to the land after 10 years and asks who brought you here? Okay, pay me. 

In extreme cases, they tell Bibanja holders to buy that land, setting an astronomical price. Where will they get the money? I think the solution is to convert Bibanja into title holding. You may call it another form of private Mailo or you may be radical like the 1975 decree converting everything into leaseholds such that everybody gets a title. I think it’s a halfway measure to say you have a certificate and you remain with the title. If a Mailo owner has five square miles but he is only using one square mile for his activities, then he or she should get a title for that one square mile. Let other people, for goodness sake, get their own titles. Even the Busuulu and Evujjo law, as it was in 1928, if you bought Mailo, you didn’t affect the rights of Ekibanja holder. In effect, you have bought air. The same provision has been put in the current Land Act.

By the way, the Mengo people who pretend to be defending Bibanja holders mourned when the current Land Act gave bona fide occupants some rights over land by giving them certificates. Mengo people mourned.

Junior minister for Lands Sam Mayanja.  PHOTO/ COURTESY

You remember how they dressed up in bark cloths mourning. If they care about them why didn’t they press for titles?

For years you have been writing articles criticising the Mengo establishment. There is a feeling that the President, well knowing your history, has appointed you to have a go at Mengo… 
Number one, I have shared my knowledge to the public that there is no such a thing as Mengo, as of now. This has been a lie that’s been told because Mengo as it was known as Mengo establishment which composed of Kabaka heading it doesn’t exist. That Kabaka was an executive Kabaka with the Katikkiro, who was also an executive Katikkiro. Then there was a Mulamuzi (judge), Omuwanika (treasurer) and Ssaza chiefs. This was Mengo as it existed in 1900 Agreement with the indirect rule structure with the Lukiiko (parliament). 

Recall there are those who told lies that the Lukiiko was a traditional Kiganda thing. That’s a no. The Lukiiko was established by the 1900 Buganda Agreement. So that they have that model of indirect rule such that they (Lukiiko) pass the laws they (colonialists) want and then they implement them. Technically, it was called the provincial Kingdom of Buganda. It was the provincial Kingdom of Buganda because it was a compromise. The head of the Buganda negotiations team Apollo Kaggwa said ‘I have created a kingdom.’ Sir Harry Johnstone, on behalf of the British, said it was a province.
The missionaries advised that this man doesn’t understand what you call a province, call it a kingdom. But it legally remained a province. When negotiations opened the next day, Harry Johnstone told Kaggwa: “You are my friend, call this thing a kingdom.”   

But in writing, they said the provincial Kingdom of Buganda. Now, this is the structure. Mengo claimed that it was the spokesperson of the Baganda, but Baganda went on to start political parties such as Uganda National Congress (UNC) and the Democratic Party (DP).   What was set in 1962 wasn’t the Kingdom of Buganda, but a federal state of Baganda. But recall the provincial kingdom was meant to serve colonialists, therefore, it couldn’t survive in an independent Uganda. A government of an independent Uganda didn’t need a structure to rule through, that’s why the 1962 Constitution didn’t call it a kingdom rather it called a federal unit.

And Muteesa [late king of Buganda] and those who were in the Mengo establishment realised that they needed a new structure after independence because the governor, who was ruling through them, was no longer there. So they had to remain relevant and they realised that the only way to do it, would be to form political parties. 
What happened was that they formed their Kabaka Yekka but because of their lies they told Baganda that this is not a political party, this is a movement to keep the throne but it was a party, except they didn’t want to disclose that, yet the president general of that party was the Kabaka himself – Sir Edward Muteesa. 

When independence came, nobody should tell you that Buganda negotiated. It was two political parties; Kabaka Yekka and the Uganda Peoples Congress (UPC). Kabaka Yekka negotiated that Muteesa should be president of Uganda, the commander-in-chief and that they should have the portfolio of Finance which Obote gave them. They also said there should be no referendum on the lost counties. When the two parties [UPC and Kabaka Yekka] clashed, 1966 happened. And don’t be deceived that Obote removed the kingdom, it’s Muteesa who removed the kingdom when he became the president of Uganda. 

How can you say Obote removed the kingdom? The Katikkiro, Mayanja Nkangi, was the secretary general of Kabaka Yekka. He could go around the country spreading the gospel of Kabaka Yekka. So by the time 1966 Lubiri happened they had abandoned Buganda. So now there is no Mengo. What these people have decided to do is to put structure which was either for the federal unit, which never worked because it collapsed within four years or the colonial structure of indirect rule. Under the current constitutional order, we have traditional rulers who don’t have political power. So I have nothing to hate in Mengo because it doesn’t exist.

Back to the land question, what issues do you have with the way Mengo handles land it calls Kabaka’s land?

Whoever advised the traditional ruler of Buganda to do this is to burn in the hottest part of hell. What he advised him is that the constitution allows him to own land entrusted by people. Now incorporate this Buganda Land Board Limited. Since the constitution tells you that you are a sole corporation by the sole shareholder [of Buganda Land Board]. So he is a sole shareholder. It’s his private company, he appoints directors who manage the land. Now the problem with this official Mailo is its public land, you can’t manage it under a private company because you will manage it under commercial lines. Secondly, if you are holding land in the trust for the people of Buganda, it should be under a trust. And trust can’t be delegated but when it’s your company you appoint a board of directors as he [Kabaka] has done.
Now they know they aren’t there constitutionally, they have put in place a company [Buganda Land Board], which is now managing public land. You know they don’t say Buganda Land Board Ltd. They don’t want the public to hear the word limited because they think it’s the Buganda Land Board that existed under the 1962 Constitution, which is a lie to the public. So how are they mismanaging? Public land is now managed on different principles. If I have my private Mailo I can sell it at Shs1 billion. I can also sell it at Shs1. It’s my land, but it’s public land. It must be under government guidelines because it’s public. So public land you get a lease and you are given conditions. 
If you fulfil those conditions of development, that lease is extended to full term and the operating rules put by the Land Commission and the District Land Boards is that you don’t re-enter and extension [of the lease] is automatic. So whoever holds public land is holding it in perpetuity. And on top of that, the Constitution says if you have to lease from a public institution you can even extend it freehold. 

Have you ever seen anybody evicted from a leasehold? Nobody refused to renew his lease to 99 years. But Buganda Land Board is charging people Shs30 million, they are charging Shs15 million for extension of leases. An annual ground rent they are putting it in millions yet it’s supposed to be symbolic that the land belongs to the State and people pay Shs20,000 a year, Shs30,000 a year. If you want a lease from Buganda Land Board they will calculate everything as if they are selling. 
They [Buganda Land Board] calculate the premium, they calculate the annual rent and calculate the period of rent it’s actually a sale. So you find this man who has got his lease from what now they call Mengo land, he finds people he evicts. He has paid phenomenal amounts of money.

The President lost in Buganda. Don’t you think your views will cost him more votes…

When he was appointing me minister, the President didn’t say don’t say this, don’t say that. The President has always been popular in Buganda, he fought the war in Buganda. And he has lived most of his adult life in Buganda. So he doesn’t do things just because of votes; that would be so cheap. What are the votes for, to remain in power? Now Buganda didn’t vote for him isn’t he in power? 
So that’s immaterial that the issue is a question of principle. People should get security on their Bibanja. That’s what President Museveni wants. This has nothing to do with elections. Some didn’t give him votes, others gave him votes, that’s immaterial. He will be in power because of his good policies.