What you need to know:
- After the restoration of mailo as a land tenure system by the 1995 Constitution there is no legal provision in existence intended to breathe life into the mailo land titles which was extinguished by the 1967 Constitution, retired judge Moses Mukiibi writes
Clause 9 of the Uganda Agreement of 1900 provided as follows: “In each county an estate, not exceeding an area of 8 square miles, shall be attributed to the chieftainship of a county, and its usufruct shall be enjoyed by the person occupying, for the time being, the position of chief of the county.”
Following the said provisions in the 1900 Agreement, the chiefs of the 20 counties of Buganda were given, as official estates attached to their posts, 8 square miles each.
The three regents were given, as official property attached to that office, 16 square miles each.
It was agreed that the said official property would afterwards be attached to the posts of the three native ministers: a prime minister (Katikkiro), a chief justice and a treasurer.
Under Clause 15 of the Uganda Agreement, 1900, it was clarified as follows: “The official estates granted to the regents, native ministers or chiefs of counties, are to pass with the office, and their use is only to be enjoyed by the holders of the office.”
Holders of official estates become corporation soles
The Native Official Estates Ordinance, No. 15 of 1919, as amended by Ordinance No. 3 of 1920, provided in Section 2 as follows:
“S.2 (a). Every holder for the time being of an official estate annexed to any office under the Uganda Agreement, 1900, the Tooro Agreement 1900, or the Ankole Agreement 1901, shall, for the purpose of holding such estate, be deemed to be a corporation sole by the name of the office of which he is for the time being the holder and by that name shall have perpetual succession and an official seal”.
Confiscation of official estates by the central govt
Under Article 108 Clause (5) of the 1967 Constitution land vested in the Land Commission included:
(a) Every official estate held by a corporation sole under the official Estate Act and
(b) Any land which was vested in the Land Board of a Kingdom or a District.
What became vested in the Land Commission were all rights, titles, estates and interests in the said land.
The said land became public land. Public land throughout Uganda was centrally vested in Uganda Land Commission. All public land in Uganda was to be treated in the same way.
Under Section 24 (1) of the Public Lands Act (13/1969) it became lawful for persons holding by customary tenure to occupy without grant, lease or licence from the controlling authority any unalienated public land vested in the commission. The land had to be in a rural area. So people could enter upon, hold and occupy by customary tenure any unalienated public land in a rural area in Buganda. Such land could be any former official estate previously held by a corporation sole; or any land formerly vested in Buganda Land Board.
Under Section 3 of the Public Lands Ordinance No. 22 of 1962 the Uganda Land Commission was established. The Uganda Land Commission would hold in freehold all lands vested in it by law. [See: Sections 9 (1) (a) and (b) and 11 (1) of the Public Lands Ordinance].
Land held as official estates by corporation soles had mailo titles.
The mailo title offices kept the original certificates of title (otherwise known as the land registers) in respect of the official estates. The holders of the offices to which official estates were annexed kept duplicate mailo titles for the land.
When the official estates were, by reason of Article 108 (5) of the 1967 Constitution, confiscated by the State and vested in the Land Commission what happened to,
(a) By operation of law, to the mailo certificates of title?
(b) Physically, to the original certificates of title (land registers) or the duplicate certificates of title?
The Land Commission could alienate any land formerly known as an official estate to any suitable applicant by way of freehold or lease.
When land formerly held under mailo tenure becomes vested in Uganda Land Commission [it could be by compulsory acquisition] what happens to the mailo title? The land is converted to freehold and the mailo title is extinguished.
Abolition of absolute ownership of land by the land reform decree (3/1975)
Under Section 1 (1) of the Land Reform Decree, 1975, all land in Uganda became public land and title to it vested in the Commission in trust for the people of Uganda.
The decree converted mailo land into public land and a mailo land owner became a lessee on conversion. [Section 2 (1) of the Decree].
The official estate of the ruler/king of Buganda Kingdom, as a corporation sole, also had vested in Uganda Land Commission by Article 108(5) of the Constitution, 1967.
This was the position with regard to all official estates and it obtained until 1993. During that time a lease of any land held by the Commission could be granted to any person.
Uganda Land Commission administered all land in Uganda in accordance with the Public Lands Act, 1969 and the Land Reform Decree, 1975.
The Traditional Rulers (Restitution of Assets and Properties) Statute, 1993 (Statute No. 8 of 1993) (Now Cap. 247) was intended to restore to the traditional ruler assets and properties previously confiscated by the State.
Under the Constitution (Amendment) Statute, 1993 (Statute No. 7 of 1993) Article 118 clause (1) the institution of Traditional Ruler was restored.
Under Article 118 Clause (4) a traditional ruler was a corporation sole with perpetual succession and with capacity to sue or be sued and to hold any assets or properties in trust for himself and the community for which he is the Traditional Ruler.
Under Article 118A it was intended to return to the traditional ruler any assets or properties previously owned by him or connected with or attached to his office.
The Traditional Rulers (Restitution of Assets and Properties) Act [Cap. 247] was enacted to give effect to Article 118A of the Constitution of 1967.
Section 2 (1) of the said Act restored to a traditional ruler assets and properties previously owned by him or connected with or attached to his office.
Under S. 2(4) of the Act the assets and properties specified in the schedule to the Act did, on the commencement of the Act, vest in the traditional ruler of Buganda, for the same estate or interest as was held by the Uganda Land Commission.
It should be noted that mailo as a land tenure system had not yet been restored. Mailo titles had, by law, been converted to leaseholds. Uganda Land Commission held freehold titles.
So, what was restored to the traditional ruler in 1993?
Under Subsection (8) of Section 2 of the Act the registrar of titles was obliged to take all necessary steps whether by the alteration or cancellation of any relevant certificates of title, or issuing fresh certificates of title, for giving effect to the transfer of any asset or property.
Mailo as a system of land tenure was not in existence in law. What fresh certificates of title would the registrar of titles issue for the purpose of giving effect to the transfer of the estate or interest held by the Uganda Land Commission to the traditional ruler of Buganda?
When mailo tenure or absolute ownership of land was abolished by the Land Reform Decree, 1975, the mailo titles were deemed by operation of law, to be cancelled or to lapse.
Uganda Land Commission held freehold titles to the various lands.
Let us look at customary tenure for comparison.
On the coming into force of the 1995 Constitution, all Uganda Citizens holding land under customary tenure on former public land became customary owners thereof. Any person, family or community holding land under customary tenure on former public land may acquire a certificate of customary ownership in respect of that land.
Land under customary tenure may be converted to freehold land ownership by registration.
The Land Act, 1998 (Act 16/1978) was enacted and commenced operation on July 2, 1998. Section 99 of the Land Act repealed the Public Lands Act, 1969. and the Land Reform Decree, 1975.
The mailo certificates of title had been cancelled by operation of the Land Reform Decree, 1975.
What Law brought the old Mailo Titles back to life? Is there any possibility of creating fresh Mailo interests in land?
For example, can mailo interests be created over land which remains unalienated and forming part of 9,000 square miles?
What is the legal procedure for doing so? After the restoration of mailo as a land tenure system by the 1995 Constitution there is no legal provision in existence intended to breathe life into the mailo land titles which has been cancelled/extinguished by the 1967 Constitution (Article 108) and the Land Reform Decree, 1975.
So, are we peddling around dead mailo titles? Is all the land in Buganda sub-region still under freehold tenure which was held by Uganda Land Commission under the 1967 Constitution and the Land Reform Decree, 1975?
Mengo is demanding for the titles to the former official estates. Which titles now, the dead ones? The official estates which were granted to the chiefs of counties in Buganda were meant to pass with the office, and their income to be enjoyed by the holders of the office.
This write up is merely a reflection and search for certainty/clarification. I will be glad to share your views on the matter.
Mob: 0772628262/ 0700467075