While addressing NRM lawmakers at Kyankwanzi in the recent past, President Museveni referred to the Mailo land tenure system in Buganda as “evil and unfair” and appealed to legislators to get it abolished as has been proposed by the Justice Bamugemereirwe Land Commission of Inquiry Report.
President Museveni has a phobia for Mailo land because he is known to hold a socialist mentality on a number of issues. It is on record that he expressed discontent on the Land chapter in the draft Constitution that the late James Wapakabulo presented to him on behalf of the Constituent Assembly in 1995. The constitutionality of the Mailo land conception is derived from the famous Australian Torrens land principle of 1863 that established the title to “real estate” in which a claimant first acquires an abstract of title before applying to court for the issuance of a title certificate confirming ownership.
Mailo land is by definition, a form of land tenure system that derives its legitimacy from the Buganda Agreement of 1900 and its main feature is the holding of registered land in perpetuity by the owner of a given land. Mailo land is a replica of the Freehold land tenure system and the difference between the two lies only in the names given to each one. Each of the two systems equally permits the separation of ownership of land from the acquisition of land developments by bona-fide occupants as guaranteed by Article 237(9) & (8) of the Constitution.
It goes without saying therefore, that if Customary land can be converted to Free hold land by registration as stated under Article 237(3) (a) & (b) of the Constitution, that implies comparatively that Mailo land is as good as Free hold land and Customary land respectively.
Since the NRM government came to power in 1986, no land law in response to the contents of Article 237(8) and (9) of the 1995 Constitution, has ever been effectively implemented. Parliament has been enacting Land laws from time to time without checking their functional capabilities on the ground.
Before Idi Amin Dada scrapped the Busulu/ Nvuujjo Law through the Land Reform Decree of 1975, there was harmony and understanding between the landlords and the Bibanja owners. Amin wanted all land to be owned by the government. He was, however, disappointed when his Attorney General Godfrey Lule later resigned from office in reaction to his declaration. Amin’s Land Nationalisation programme remained redundant until he was removed from office in 1979. The NRM government through Parliament in 1998 enacted its first land law to replace the Busulu/Nvujjo law.
That land law was not brought in good faith. It imposed a busulu fee of Shs1,000 to be paid by the bibanja holders to the land owners on terms regardless of the size and location of the kibanja land in occupation. The bibanja holders and the land owners respectively rejected the busulu fee and the unscrupulous investors used that short-coming to buy off people’s lands in open defiance of the conditions set by the Land Act of 1998 to protect the bibanja occupants.
Through Parliament, I amended the 2004 Land Bill by side-lining the busulu fees of Shs1,000 to be revised by the district land boards in accordance with the size and location of the kibanja. The Bill was passed by Parliament without the presidential assent but government refused to fund the district land boards and the tribunals that would be settling land disputes, and we are still in that quagmire.
Mailo land is the term the Kingdom of Buganda chose to identify the land tenure system under which its land has been traditionally protected over the years under the leadership of the Sabataka. Any attempt for Parliament to quash the Mailo land chapter therefore, could force the Kingdom of Buganda to review its partnership with the regions and districts that founded Uganda in 1962, on the right to self-determination.
Government, therefore, has no sound reason for abolishing Mailo land because under Article 26(2) of the Constitution, government can take possession of any land for public use for as long as it adequately provides compensation to the affected persons. Mailo land is not the source of discontent in land management in Buganda. Lack of seriousness in implementing good land laws is the source of the problem.
The author, John Ken Lukyamuzi is the president of the Conservative Party