The Traditional Rulers (Restitution of Assets and Properties) Act, Cap. 247 was enacted to restore traditional rulers, assets and properties previously owned by him or connected with or attached to his office but which were confiscated by the State.
Buganda Land Board, a body corporate with perpetual succession and a common seal, was created by the Public Lands Ordinance, No. 22 of 1962. All former crown lands, including the 9,000 sq. miles of land (Mailo 9,000), were declared public lands.
Public lands in the federal state of Buganda were vested in Buganda Land Board in freehold. Buganda Land Board became the controlling authority. Buganda Land Board was adopted and confirmed by the Constitution of Uganda, 1962.
Buganda Land Board was mandated to hold and manage Mailo 9,000 for the benefit of the people of Buganda.
The functions of Buganda Land Board were to be exercised on behalf of the ruler (the Kabaka).
The Republican Constitution, 1967 by Article 108 (5) confiscated Mailo 9,000 and vested it in Uganda Land Commission.
It is debatable if Mailo 9,000 was included among the assets or properties, previously owned by the traditional ruler or connected with or attached to his office, which were transferred to the traditional ruler of Buganda (the Kabaka) under Section 2 of the Traditional Rulers (Restitution of Assets and Properties) Act.
However, for more than 60 years between 1900 and 1962, Mailo 9,000 was not in the hands of Kabaka’s establishment.
Buganda Land Board held and managed Mailo 9,000 for the benefit of the people of Buganda for only five years, between 1962 and 1967.
On the other hand, was Mailo 9,000 among the other assets and properties which remained to be sorted out between government and the traditional ruler of Buganda (the Kabaka)?
Was there a need for negotiation between government and the Kabaka with a view to reaching an agreement over the return of Mailo 9,000?
Within the meaning of Section 2 (7) of the Traditional Rulers (Restitution of Assets and Properties) Act is agreement still awaited between government and the Kabaka whereby government will surrender possession and management of Mailo 9,000 to the Kabaka?
Would Mailo 9,000, thereafter, be transferred to the Kabaka under Section 2 of the Act with effect from a date named in the agreement?
Article 239 of the Constitution (1995) limited the nature of land to be held and managed by the Uganda Land Commission. It holds land vested in or acquired by government.
The Constitution (1995) divested all other types of land from Uganda Land Commission.
There is no provision of law continuing to vest in Uganda Land Commission any rights, titles, estates and interests in other lands previously vested in the Commission immediately before the promulgation of the Constitution (1995).
1. So, where did Mailo 9,000 go?
Under Article 241 of the Constitution (1995) the functions of a District Land Board are-
(a) To hold and allocate land in the district which is not owned by any person or authority.
The Uganda Land Commission by virtue of the effect of Articles 239 and 241 (1) (a) and (b) of the Constitution and the operation of Sections 49(a) and 59(a) and (b) of the Land Act, relinquished the freehold title to Mailo 9,000 which remained un alienated.
Accordingly, in any district of Buganda freehold title to any portion of un alienated Mailo 9,000 located in the district is now vested in the District Land Board.
2. On whose behalf is Mailo
9,000 held and managed?
Mailo 9,000 was, in 1962, returned to Buganda Kingdom, vested in Buganda Land Board in Freehold, for the benefit of the people of Buganda.
Buganda Land Board carried out its functions on behalf of the Kabaka. Buganda Land Board was a Statutory and Constitutional body. Buganda, as a State, had a Federal Government.
Today, the Kabaka is a corporate sole, with perpetual succession and with capacity to sue and be sued, and to hold assets or properties in trust for itself and the people concerned (Article 246 (3)(a) of the Constitution (1995).
A traditional ruler does not have and cannot exercise any administrative, legislative or executive powers of government or Local Government. (Article 246 (3) (f) of the Constitution (1995).
As an institution, the traditional or cultural leader has a network of personnel to run the traditional or cultural responsibilities of the institution. As a cultural establishment it carries out functions to sustain and develop the institution.
Should the remaining un alienated portions of Mailo 9,000 spread out in the districts of Buganda, be centrally vested in the institution of the traditional or cultural leader of Buganda?
Wouldn’t the Mailo 9,000 be mixed up with Kabaka’s official estate (the 350 square miles)?
Can the traditional leader of Buganda manage, control and administer land almost half the size of Buganda itself?
On the other hand, who is the ultimate owner of Mailo 9,000? The answer is: The people of Buganda.
How do they exercise their ultimate ownership and control? The answer is: Through the district land boards.
How are district land boards accountable to the people of Buganda in holding and managing Mailo 9,000?
How do district land boards ensure that the people of Buganda benefit from their management and control of Mailo 9,000?
3. Occupation of Mailo 9,000
Under the Buganda agreement of 1900, the regents and the Ssaza chiefs, acting on behalf of the Kabaka, chiefs and people of Buganda, surrendered to Her Majesty’s government the right of control over 10,550 square miles of land.
Mailo 9,000 included land occupied by bakopi (peasants) by customary tenure. Bakopi became displaced when the areas which they previously occupied were surveyed and demarcated as Mailo land for individuals.
Bakopi were again displaced when, following the Crown Lands (Declaration) Ordinance, No.3 of 1922, it became unlawful for any African in the Buganda Province to occupy Crown Land outside a township or trading centre without a valid licence or lease.
Customary tenure, as a system of holding land, was not established or developed in Buganda in areas covered by Mailo 9,000. Until the Public Lands Act (13/1969) Mailo 9,000 was not yet occupied by customary tenure.
Under the Public Lands Act (13/1969) it became lawful for persons to enter upon, hold and occupy by customary tenure any un alienated public land in a rural area in Buganda.
Buganda Kingdom had ceased to exist. There was no government in the kingdom to develop a local system for allocation, occupation and use of the public land comprised in Mailo 9,000.
Allocation of land and control and management of its use was never the function of the community, clans, lineages or families. The clans/elders in Buganda did not arrange any schemes of succession to land forming part of Mailo 9,000 left by any deceased persons.
No customary rules or practices were developed for resolving disputes relating to occupation of Mailo 9,000. There is no source of customary law or custom governing customary land tenure on Mailo 9,000.
Any African in the Buganda Province who wanted to occupy Crown Land in a rural area had to pay for an annual temporary occupation licence issued by District Commissioners at a rental (Busuulu) of Shs10. This was the position until 1967.
The Land Reform Decree, 1975, allowed the system of occupying public land under customary tenure to continue.
Between 1975 and 1995 no person could occupy public land (such as Mailo 9,000) by customary tenure except with the permission in writing of the prescribed authority, the Sub-county Land Committee.
The Sub-county Land Committees were either non-existent or non-functional. However, there are supposed to be in existence sub-county registers of customary occupation of land comprised in Mailo 9,000.
After promulgation of the Constitution (1995), in areas outside Buganda a customary occupant, who is a citizen of Uganda, owns the land, and the land vests in him/her.
All Ugandan citizens holding land under customary tenure on former public land became customary owners thereof. They can acquire certificates of customary ownership or freehold titles.
Does the same position hold in respect of peasant occupants of parcels of land comprised in Mailo 9,000?
Have the district land boards in Buganda region made any conscious effort to redress the injustice which was meted to peasants following the Uganda agreement, 1900?
Is the Mengo establishment running its affairs as bulungi bwansi (voluntary), best suited to redress such historical injustices?
Do district councils in Buganda have a deliberate policy of enabling any customary occupants of Mailo 9,000 to register their ownership as freehold?
Don’t district land boards allocate portions of Mailo 9,000 to “foreign” applicants despite the existing occupation by peasants?
Please continue the debate on this matter.
The writer, Mr Moses Mukiibi is a retired judge of the High Court of Uganda. 0772 628 282/0700 467 075