What you need to know:
- Lands ministers, Attorney General and lawyers highlight gaps in the existing laws, which have contributed to confusion and in most cases led to land owners evicting or duping bona fide tenants to share their land or vacate without due process. The Lands ministry has now made several clarifications regarding rights and obligations of tenants, landlords and also why the mailo land tenure system should be removed in the country.
A land transaction practice in central Uganda where landlords informally agree to share part of their land with bona fide or lawful occupants (tenants or bibanja holders) so as to be allowed to sell off the rest has been declared illegal.
The government’s notable declaration rests on its interpretation of the current land law and is bound to have far-reaching implications for real estate businesses across most of central Uganda -- where the practice is more common, and has been a source of contention and land disputes.
Coming weeks after the courts, in an earlier landmark decision, recognised and confirmed the third party rights of tenants to land whose title is held by another under the mailo land tenure system, the government’s clarification essentially consolidates the existing law and will further strengthen and secure the land interests of bibanja holders.
It is, however, not immediately clear how far the declaration will go in helping settle the disturbing and rampant ongoing illegal evictions of tenants from lands on which they have a historical claim, and have called home for many years.
State minister for Lands, Mr Sam Mayanja, this week agreed with the opinion of experts in land law who said the increasingly widespread tendency to agree to share is actually unconstitutional and unlawful.
In comments to the Monitor, Mr Mayanja said all landlords who lure their tenants into land sharing agreements so as to purportedly ‘buy themselves out’ must be arrested for violating the constitutional rights of bibanja holders to land.
He denounced it as “broad day theft, because since 1928 when the Busuulu (ground rent) law was put in place, the kibanja (clearly demarcated plot of land within a larger, usually titled piece of real estate) is the property of the tenant guaranteed under the law, with a right of inheritance.”
“These [landlords] are thieves who must be arrested because they are taking advantage of their tenants’ illiteracy to steal their property. If the Constitution gives the tenant a right of occupancy, then who are these people taking away their property?” he asked rhetorically.
The denunciation comes in the wake of more title holders (landlords) conspiring with real estate dealers to force tenants to surrender part of their land in total disregard of the law.
Attorney General Kiryowa Kiwanuka yesterday reaffirmed the position of the law, agreeing that the only saving grace for such transactions would be where the landlord and tenant come to an informed consensus. There should be no coercion of the kibanja holder, he said.
Mr Kiwanuka said the same Constitution which gives and protects tenants’ rights of occupancy, does not preclude the implied validity in a consensus agreement between landlord and tenant.
“But, tenants are within their rights to refuse the sharing deals if they are not interested or if they find it unfair,” he said.
The effect of Mr Kiryowa’s reading of the law is that while real estate dealers, who have largely been pinned in this vice, can buy land from title holders, they are not allowed to force tenants to share that land with them.
In areas like Busamba Village in Wakiso, the Minister of Lands, Ms Judith Nabakooba, intervened on May 21 after a landlord known as Ms Berna Nakato was allegedly forcing bibanja holders to share with her part of a 1,500-acre swathe of land. Ms Nakato purported to have bought the estate from the family of the late Gabudyeri Lubajja.
By the time Ms Nabakooba intervened, 40 tenants had been affected. Several similar cases have been, and continue to be, mediated by Ms Nabakooba and Mr Mayanja across central region.
The junior Lands minister said lawful tenants are only required by the law to pay their annual rent (busuulu) of between Shs1,000 to Shs10,000, to their landlords.
“The only option for repossessing the land from the tenants is when they don’t pay busuulu for three consecutive years. But again, non-payment is not a ground for eviction. It can be termed as a civil debt,” he said.
A 2017 land law explanatory document titled: ‘What the law says on land evictions’ which was compiled and issued by the Lands ministry stipulates that tenants can only be evicted after failure to pay annual nominal ground rent.
Article 237(1) of the Constitution states that: “Land in Uganda belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems provided for in this Constitution”
The article guarantees the rights of tenants to own land by fulfilling the tenure obligations, which, among others, include paying busuulu to landlords.
Equally, Article 237(8) provides that lawful or bona fide occupants of mailo land, freehold, or leasehold land shall enjoy security of occupancy on the land.
The Mawokota South MP, Mr Yusuf Nsibambi, who is a lawyer and former chairperson of the Kampala District Land Board, on Monday said all agreements for land sharing between landlords and tenants are null and void unless the two parties reached a well-informed consensus.
“For such contracts to be valid, there must be people to explain the implications and if they agree, then there is no problem. But the majority of the victims are poor people who are vulnerable, so they enter into those contracts unwillingly [and in ignorance of their rights],” Mr Nsibambi said.
He added: “Under the law, there is no provision that gives landlords a right to share or take part of the tenant’s land as a way of buying themselves out. So, such transactions are unlawful where there is no proof of a consensus.”
Mr Richard Muganzi, the executive director of the Land Code Initiative, an NGO involved in promoting people’s land rights, has also told Daily Monitor that in a country where perceptions of the law, human dignity and ethics are abused, such acts are bound to happen despite their illegality.
Agreeing with the AG, Mr Muganzi asserted that, “such an arrangement can only work if the two parties are benefiting, but the tenant seems to be affected more because one’s land size ends up being reduced”.
Under the mailo land tenure system, which is common in the central region (Buganda), land is jointly owned by both the landlord and tenants – a fact which was affirmed in the 1995 Constitution and codified in the Land Act, 1998.
Mr Mayanja said this apparent double ownership is what has greatly contributed to rising cases of land wrangles in the region due to high illiteracy levels prevalent in many tenant communities.
“[Under the law], the kibanja owner has 70 percent ownership of the land and the landlord has 30 percent. Then, I wonder how someone with 30 percent asks the one with 70 percent to buy themselves out. That’s total confusion and that is why we are fighting the mailo system to end this confusion,” Mr Mayanja noted.
Relatedly, Mr Caleb Alaka, a lawyer with considerable expertise in land law, cautioned landlords against manipulating bona fide and lawful occupants whose land rights are guaranteed by law.
“The law is more protective towards the tenants, especially those who have been occupying the land for at least 12 years,” Mr Alaka said, adding that, “landlords should ensure that their tenants have understood the terms and conditions in their land sale agreements, because in case of any complaint it may be hard for the landlord to win a case of land sharing because its validity relies on consensus between the two sharing parties.”
About Kabaka’s land
When contacted on Tuesday, the communication team leader at Buganda Land Board, Mr Joseph Kimbowa, said land sharing is not tolerated on land that is directly owned by the Kabaka and Buganda Kingdom.
“I cannot speak for the land owners, but for those staying on the Kabaka’s land, such sharing is not allowed. Such cases are common with individual land owners who always want to sell off their land,” Mr Kimbowa said.
“The people on Kabaka’s land are free to apply for titles on this land as long as they have the capacity to carry out the surveys, and also follow all the right procedures of acquiring the land titles.”
Mr Kimbowa, however, said: “The only instances in which the kingdom can repossess a given piece of land is when the tenant willingly gives back some land to the Kabaka.”
However, despite the legal and cultural safeguards in place, people have lost prime land to tricky landlords.
Mr Fred Katongole, a resident of Maya in Kyengera Town Council, Wakiso District, told this publication that he lost almost half of his 2.2 acres to his landlord because he wanted to acquire a land title.
“Our landlord said we should buy ourselves out as soon as possible because he was planning to sell the land. Since I had no money, I had to give him part of the land to help me process the title. The same was done by the majority of the tenants who had no money,” Mr Katongole said yesterday.
However, Mr Mayanja said a change in landlords (when one sells to another individual like in Kyengera case) under mailo land tenure does not affect the third-party rights of the lawful bibanja holders who were settled on the land before the new ownership ensued.
A landlord in Wakiso, who spoke on condition of anonymity, told Daily Monitor that the so-called land sharing is always agreed upon between the two parties.
“In most cases, tenants do not have money to process the land titles and in this case, they opt to offer part of the land to the landlords to raise the funds which are required for surveying and other activities embedded in acquiring the land title,” the landlord said on Tuesday.
Altogether, there are an estimated 20 million tenants (under the mailo tenure system) and land owners under the customary land tenure system in Uganda, according to the 2017 Lands ministry document.
The document, however, does not offer an estimation of tenants specifically under mailo tenure. It also showed that, at the time, there were 600,000 registered owners of land. Those figures may have changed over the last decade and may no longer reflect existing realities.
In 2013, President Museveni had, without explicitly quoting the legal provision, directed that if tenants are not willing to sell their interest in land, they should not be forced to vacate the property.
He also directed where tenants accept to sell their bibanja, they should be paid the real value of the land.
Six years later in April 2019, Mr Museveni warned Ugandans against fragmenting land, a vice he said is backward, primitive, and can lead Uganda into irreversible poverty.
“I can’t sit back and keep quiet when I see Ugandans destroy land, which is our most valuable resource. What will happen when you fragment all the land in the country and we get offers to do large-scale agricultural production?” he said.
Illegal land sharing was one of the issues interrogated by Justice Catherine Bamugemereire’s commission of inquiry into land matters that was appointed by the President in December 2016.
In its report, three years later, the commission made several recommendations including registration of all land in Uganda; enhancing tenure security; introduction of a customary freehold system by which a certificate of customary title shall be registered; establishment of the Uganda Land Services Bureau by merging all land administration institutions, among others.
Lands minister Nabakooba is a member of an inter-ministerial committee, which was constituted to study the Bamugemereire report and come up with a Cabinet White Paper. She told this newspaper on June 22 that their committee has looked at the report and submitted findings to Cabinet as instructed.
It is expected that the government will be guided by this report as it goes about the sensitive issue of cleaning up the country’s land sub-sector.
What the law says
Annual nominal ground rent will be paid to the land owner.
The amount is no longer Shs1,000 as most people still believe, but the amount is determined by the District Land Boards (DLBs).
Nonpayment of annual nominal ground rent is the only ground for evicting tenants.
Landlords have to serve eviction notices to tenants who default on payment after a period of one year to show cause why the tenancy should not be terminated.
The rights and obligations of land owners
• A customary, mailo and freehold proprietor owns the land forever.
The leasehold proprietor owns the land for a given period of time under terms and conditions stipulated in the lease agreement;
• May sub-lease, mortgage, pledge or sell the land.
• May sub-divide the land for purpose of sale or any other lawful purpose.
• May pass on the land to anybody by will or gift.
• Is entitled to be given the first option to buy out the interests from tenants by occupancy who may be on that land and willing to sell.
• Must recognise the rights of the lawful and the bonafide occupants if they exist on his/ her land and their developments on the land.
• Must recognise the rights of the successors of the lawful and bonafide occupants.
• Uses land in accordance with other policies and laws governing land use.
The rights and obligations of tenants
• Enjoys security of occupancy on the land he/she occupies.
• Must pay annual nominal ground rent to the land owner.
• May acquire a certificate of occupancy by applying through the land owner.
• With permission of the land owner, a tenant may sublet and /or subdivide the kibanja.
• May assign, pledge and create 3rd party rights in the land with consent of the land owner.
• May end the occupancy and return the kibanja to the land owner.
The law has provided a social protection intervention that seeks to enhance the security of occupancy of tenants on registered land. It also protects customary land owners from unlawful evictions, hence eradicating untold suffering and landlessness.
MUSEVENI STOPS LAND EVICTIONS
Directive issued on February 28, 2022
‘‘ I have issued a directive through the Office of the Prime Minister regarding illegal evictions. These evictions are permitted by corrupt officials in the district. Using the powers given to the President by Articles 98(1) and 99(1) of the Constitution, I direct as follows:
•No eviction should be allowed to take place in a district without (1) the district security committee, chaired by the RDCs, meeting, looking, and consulting directly with the Minister of Lands.
If this is not done and evictions take place, I will hold all the Members of the District Security Committee, except the UPDF representative because he/she may not know the substance of the issues involved, responsible and I will take action against all of them.
•Secondly, I request His Lordship the Chief Justice to prevail on his Magistrates and Judges from violating the Constitution by illegally evicting our people in collusion with land grabbers.
•I further direct the Minister of Lands to inform the Attorney General about such abuses by the judicial officers, so that legal action can be taken on them.”